Abel v. Blair

• Decision Date: 27 July 1895
• Parties: DICK ABEL v. W. J. BLAIR.
• Court: Oklahoma Supreme Court

1895 OK 18

41 P. 342

3 Okla. 399

DICK ABEL v. W. J. BLAIR.

Supreme Court of Oklahoma

Decided: July 27, 1895

Error from the District Court of Logan County.

Syllabus

¶0 1. CASE-MADE -- Records of Court; Contradiction. The records of the court incorporated into a case-made cannot be contradicted by other statements contained in the case-made.

2. SAME--If Not Served in Time, Extension of Time by the Judge Void. Where the extensions of time granted by the district court or judge thereof, have once expired, the district court or the judge thereof has no power then to extend the time for serving a case-made, and a case-made, served, signed and settled after the expiration of time, is void.

3. SAME -- Being Held Void, Cannot Be Used as a Transcript. Where a case-made has been held void because it was not served in time, and where the clerk of a district court has not certified that the copies of the pleadings, findings and conclusions of the court as contained in the case-made, are true and correct copies of the same as shown by the records of the district court, such record cannot be considered as a transcript of the record of the court below upon the certificate of the judge of the district court, attested by the clerk, that the pleadings, orders and process are true and correct copies of the originals.

Wisby & Hornor, for plaintiff in error.

Huston & Huston and J. E. Pickard, for defendant in error.

BIERER, J.:

¶1 To the petition in error in this case is attached the original case-made filed in the court below. Upon the motion of the defendant in error, the cause was dismissed in this court because the case-made was not served in time. The case-made, against which this objection was offered, shows that the judgment of the court below was rendered May 14, 1894, and that motions for a new trial and in arrest of judgment were made and overruled the same day, and the defendant allowed sixty days in which to make and serve a case-made for the supreme court; that on July 3, 1894, for good cause shown, an extension of the original time for making case-made was granted, giving sixty days' time from the date thereof, that is, from July 3, 1894, in which to make a case-made for the supreme court. On the 5th day of September, 1894, the judge of the district court, on application of plaintiff in error, again extended the time for thirty days to make and serve a case-made, and the case-made was served on the fourth day of October, 1894.

¶2 Plaintiff in error claims that when the extension of time to make a case-made was made by the court on July 3, 1894, it was for sixty days' additional time. The statement in the case-made is that sixty days' additional time was given, but the statement also is that the order of the court making such extension is shown by the journal entry, which is set out in words and figures following the statement in the case, and this journal entry shows that "it is ordered by the court that defendant have an extension of the original time, heretofore granted, of sixty days from this date to make a case-made for the supreme court." The statement in the case-made, that sixty days' additional time is granted, is qualified by the further statement that the order for the same is therein set out in words and figures, and this order shows that this sixty days was granted, not in addition to the time theretofore granted, but that the time was extended sixty days from the 3rd day of July, 1894, and this journal entry, taken as a record from the entries of the orders of the court, not only shows within itself that the extension of time granted was not to be an additional sixty days from the 3d day of July, 1894, but only sixty days from that date, but it also is a record of the court that cannot be contradicted by any statement in the case-made. (Territory v. Day, 2 Okla. Rep. 409; 2 Okla. 409, 37 P. 806.) This grant of additional time, made on July 3, 1894, for sixty days, expired on the 1st day of September, 1894, and the judge of the district court had no power, on September 5, 1894, to grant any additional time, and the service of the case-made, and the settlement of the case-made served after the time for making and serving same had elapsed, were void. (AEtna Life Insurance Co. v. Koons, 26 Kan. 215; Ingersoll v. Yates, 21 Kan. 90.)

¶3 To this case-made, which we have held void, is attached the pleadings, the special findings of fact and conclusions of law, and exceptions thereto, in the court below, and plaintiff in error asks that the errors assigned be considered upon this...