Hensley v. State , 121 Okla. 47 ( 1926 )

Defendant in error has filed motion to dismiss appeal for the reason that no notice of appeal was given as provided by section 782, C. O. S. 1921, and for the further reason that the case-made was not served within the time provided by section 785, C. O. S. 1921, or within any valid extension of time granted thereafter by the order of the district court of Stephens county, Okla. An examination of the case-made discloses that there was no notice of appeal given in open court as required by section 782. C. O. S. 1921, at the time the judgment herein was rendered. While the motion to dismiss was pending in this court, plaintiff in error asked for and obtained permission to withdraw the case-made for correction under the supervision of the trial court, and while same was withdrawn plaintiff in error made an effort in the lower court to have an order nunc pro tunc entered showing that notice of appeal was actually given at the time the judgment was rendered. The trial court heard evidence on this motion, and the proceedings on same, including testimony taken, are shown in an amendment to the case-made. The trial court, however, denied the application for an order nunc pro tunc showing that the defendant on the 20th day of February, 1925, gave notice in open court of his intention to appeal and was granted additional time within which to prepare and serve case-made, thus holding, in effect, that no such notice was given or extension of time beyond the statutory time was granted. The record, therefore, stands in this court just as it did before the case-made was withdrawn for amendment, and conclusively shows that no proper notice of appeal was given and no valid extension of time beyond the statutory period within which to make and serve case-made was granted.

Judgment was rendered herein on February 20, 1925, and on the 19th day of March, 1925, the trial court made an order extending the time 60 days from that date within which to make and serve case-made. This order, however, is void for the reason that the 15 days allowed by section 785, C. O. S. 1921, had expired at the time the order was made. The trial court has no power to extend the time within which to make and serve a case-made after the time allowed by statute or granted by previous extension has expired. Korimer v. Collins,31 Okla. 457, 122 P. 159. Section 782, C. O. S. 1921, providing for notice of appeal to be given, is mandatory and must be complied with.

This appeal will, therefore, have to be dismissed, and it is so ordered.

NICHOLSON, C. J., and MASON, HARRISON, LESTER, CLARK, and RILEY. JJ., concur.