Polson v. Purcell and Jackson , 4 Okla. 93 ( 1896 )

The opinion of the court was delivered by The defendants in error have presented their motion to dismiss the appeal brought in this case to this court, the ground of their motion being that the case made was not served in time.

The record shows that the judgment of the district court was rendered on the 24th day of November, 1893, and the plaintiff in error given sixty days to make and serve case made.

It further shows that on February 1, 1894, the plaintiff in error, by his attorney, made a motion to be granted a further extension of time of thirty days to make and serve his case made, and to this motion is attached the affidavit of his attorney that he has been unable to prepare his appeal and serve case made in the cause.

The record shows an acceptance of service of case made by the attorneys for the defendants in error, but does not show when it was served. The record should always affirmatively show that the case made was served in time. This record not only does not do this, but it does show, by the affidavit of appellant's own attorney, that it was not served in time, and that was his reason for getting a further extension of time. The extension of time was granted by the trial judge as asked for, but he had no power to then extend the time to make a case made, and the extension was absolutely void. (Abel v. Blair, 3 Oklahoma, 399, 41 Pacific, 342).

The appeal is dismissed.

Dale, C. J., who presided in the case below, not sitting all the other Justices concurring.