FURNITURE COMPANY v. OKLAHOMA DISCOUNT CORPORATION

FURNITURE COMPANY v. OKLAHOMA DISCOUNT CORPORATION
1954 OK 323
277 P.2d 116
Case Number: 36426
Decided: 11/23/1954
Supreme Court of Oklahoma

J. & J. FURNITURE COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
OKLAHOMA DISCOUNT CORPORATION, A CORPORATION, DEFENDANT IN ERROR.

Syllabus by the Court

¶0 1. The filing of an unnecessary and unauthorized motion for new trial and the later determination thereof does not extend the time in which to make and serve a case-made.
2. Where the case-made is not served within 15 days after the time of the final order entered in the trial court or some valid extension thereof this court is without jurisdiction to review the appeal and the same will be dismissed.

Appeal from the Court of Common Pleas of Oklahoma County, Carl Traub, J.

Albert D. Lynn, Oklahoma City, for plaintiff in error.

Keaton, Wells, Johnson & Lytle, Oklahoma City, for defendant in error.

CORN, J.

¶1 This is an appeal from an order of the trial court refusing to vacate a judgment. On June 18, 1953, a default judgment was entered in favor of Oklahoma Discount Corporation and against the plaintiff in error. On August 7, 1953, plaintiff in error filed a motion to vacate the judgment and permit the defendant to defend. This motion was overruled on October 13, 1953. The ground for the motion to vacate was that the service of summons was irregular in that the Secretary of State did not comply with the law as to forwarding the summons to the Corporation, defendant so that the defendant did not receive it and had no notice of the pending of the action and did not and could not defend or appear.

¶2 Under many holdings of this court the filing and determination of an unnecessary motion for new trial does not extend the time in which to appeal from said order. Avery v. Jayhawker Gasoline Co., 101 Okl. 286, 225 P. 544; Continental Gin Co. v. Arnold, 66 Okl. 132, 167 P. 613, L.R.A. 1918B, 511; Jones v. Norris, 185 Okl. 125, 90 P.2d 403. The filing and determination of the motion for new trial was therefore without effect and did not extend the time in which to make and serve a case-made.

¶3 The case-made was not served within 15 days after the order of October 13, 1953, or any valid order extending that time. This court is without jurisdiction to review the appeal. The order of the trial court entered November 28, 1953, purporting to extend the time was invalid. Korimer v. Collins, 31 Okl. 457, 122 P. 159; Hurley v. Childers, 80 Okl. 243, 195 P. 755.

¶4 Appeal dismissed.

¶5 JOHNSON, V.C.J., and WELCH, WILLIAMS and BLACKBIRD, JJ., concur.

¶6 HALLEY, C.J., dissents.