JORDAN BUS COMPANY v. WAFER

JORDAN BUS COMPANY v. WAFER
1954 OK 311
278 P.2d 233
Case Number: 36173
Decided: 11/09/1954
Supreme Court of Oklahoma

JORDAN BUS COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
GUS WAFER, DEFENDANT IN ERROR.

Syllabus by the Court

¶0 1. Where the record discloses that a judgment by default was entered on April 3, 1953; that on April 11, 1953, defendant filed its motion to vacate the judgment; that on May 15, 1953, said motion was heard and denied; that defendant did not give any notice of appeal nor take any extension of time to make and serve case-made; that on May 16, 1953, defendant filed its motion for a new trial; that prior to a ruling thereon, and on May 21, 1953, defendant filed its notice of appeal to the Supreme Court; that the motion for a new trial was overruled on June 5, 1953, upon which date defendant again gave notice of appeal to the Supreme Court. Where as here the motion to vacate the judgment raised questions of fact on which evidence was heard, the alleged error cannot be presented to this court by transcript.

2. Record examined, and held, that the purported case-made attached to the Petition in Error is legally insufficient to give this court jurisdiction as the filing of the motion for a new trial did not extend the time for perfecting the appeal nor the time within which case-made is required by law to be served.

3. Record examined, and held, that the time for serving case-made expired fifteen days after the order of May 15, 1953, overruling defendant's motion to vacate judgment, and the order extending time, made on June 5, 1953, after the motion for a new trial was overruled was not a valid order.

4. As the case-made was not served within the statutory period or within any extension of time made within said statutory period, and as the errors complained of cannot be reviewed on a transcript of the record, the appeal is dismissed.

Appeal from the District Court, McCurtain County, Howard Phillips, J.

O.A. Brewer, Hugo, for plaintiff in error.

Hal Welch, Hugo, Don Welch, Don E. Welch, Madill, for defendant in error.

O'NEAL, J.

¶1 This case is a companion case to the case of Jordan Bus Company v. Wafer, No. 36,172, Okl., 278 P.2d 228. Every issue of fact in the two cases are identical, and the principle of law announced in our opinion in Jordan Bus Company v. Wafer, No. 36,172, is applicable here.

¶2 Upon the authority of the decision in Cause No. 36,172, the application and motion of the defendant in error, Gus Wafer, to dismiss the appeal, is granted.

¶3 JOHNSON, V.C.J., and CORN, ARNOLD and PERDUE, JJ., concur.

¶4 HALLEY, C.J., and DAVISON, WILLIAMS and BLACKBIRD, JJ., dissent.

¶5 WELCH, J., having certified his disqualification in this case, Honorable C.B. PERDUE, Wilburton, Oklahoma, was appointed special Justice in his stead.