Abel v. Blair

• Decision Date: 27 July 1895
• Citation: 41 P. 342,3 Okla. 399,1895 OK 18
• Parties: ABEL v. BLAIR.
• Court: Oklahoma Supreme Court

41 P. 342

3 Okla. 399, 1895 OK 18

ABEL v. BLAIR.

Supreme Court of Oklahoma

July 27, 1895

Syllabus by the Court.

1. The records of the court, incorporated into a case made, cannot be contradicted by other statements contained in the case made.

2. 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. 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.

Error to district court, Logan county; before Justice Frank Dale.

Action by W. J. Blair against Dick Abel. There was a judgment for plaintiff, and defendant brought error. The case was dismissed for failure to serve the case made in time, and plaintiff in error moves that the case made be considered as a transcript. Motion denied.

Wisby & Horner, for appellant.

Huston & Huston and J. E. Pickard, for appellee.

BIERER J.

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 60 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 60 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 30 days to make and serve a case made, and the case made was served on the 4th day of October 1894. Plaintiff in error claims that, when the extension of time to make a case was made by the court on July 3, 1894, it was for 60 days' additional time. The statement in the case made is that 60 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 60 days from this date to make a case made for the supreme court." The statement in the case made, that 60 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 60 days was granted, not in addition to the time theretofore granted, but that the time was extended 60 days from the 3d 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 60 days from the 3d day of July, 1894, but only 60 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 (Okl.) 37 P. 806. This grant of additional time, made on July 3, 1894, for 60 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. Insurance Co. v. Koons, 26 Kan. 215;...