Auto Convoy Co. v. Smith
| Decision Date | 15 March 1960 |
| Docket Number | No. 38365,38365 |
| Citation | 351 P.2d 1053 |
| Parties | AUTO CONVOY COMPANY, a foreign corporation and Ober W. Willingham, Plaintiffs in Error, v. Issac D. SMITH, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
An order extending the time within which to make and serve case-made beyond the statutory time within which an appeal must be effected does not extend the time of appeal. 12 O.S.1951 § 972.
Appeal from District Court of Ottawa County; A. L. Commons, Judge.
Action to recover personal injuries sustained in an automobile collision. Judgment for plaintiff, Issac D. Smith and defendants, Auto Convoy Company, a foreign corporation and Ober W. Willingham, appeal. Issac D. Smith moved to dismiss the appeal for the reason that it was not filed in the time allowed by law. Motion sustained and appeal dismissed.
Charles F. Burns, Miami, Henry Exall, Jr., Dallas, Tex., for plaintiffs in error.
Jack C. Brown, Miami, for defendant in error.
The defendant in error, Issac D. Smith, filed a motion to dismiss the appeal in this case for the reason that the appeal was not filed in this Court within the time allowed by law.
The motion for new trial in this case was overruled by the trial court on March 7, 1958, and the defendants below gave notice of appeal and were allowed at that time an extension of 60 days from the 7th of March, 1958, to make and serve case-made, and plaintiff to have 20 days thereafter to suggest amendments, same to be settled on five days notice in writing by either party. A further extension of 30 days was taken in the matter on the 1st of May, 1958, and again on the 5th day of June, 1958, an order was entered by the trial court extending the time for 30 days to make and serve case-made, and the plaintiff to have an additional 10 days thereafter in which to suggest amendments, same to be settled thereafter on five days notice in writing by either party. The case-made was actually settled by the trial judge on July 15, 1958, and filed in this Court on the same date. Nowhere in the record is there any order which extended the time for filing the appeal in this Court.
Under the provisions of 12 O.S.1951 § 972, an appeal must be filed in the Supreme Court within three months from the rendition of the judgment or final order complained of unless the trial court extends the period of time. In this case the three months expired on the 7th day of June, 1958. The sole question in this case was settled by us in the case of City of Cleveland v. Hambright, Okl., 320 P.2d 388. In that case we specifically held that an order of the trial court extending the time to make and serve case-made does not extend the time in which to perfect that appeal. See also Adams v. Hobbs, 204 Okl. 85, 226 P.2d 913; Wilson v. Wilson, Okl., 264 P.2d 733; Roof v. Fechtel, Okl., 258 P.2d 890.
Section 8, Article 7, of the Constitution, provides as follows:
'The appellate and the original jurisdiction of the Supreme Court shall be invoked in the manner now prescribed by the laws of the Territory of Oklahoma until the Legislature shall otherwise provide.'
The Legislature of our State has provided that appeals must be filed within three months from the rendition of the judgment or final order complained of and since we have held that an extension of time in which to prepare and serve and settle case-made does not extend the time for filing the case in this Court, the appeal in this case must of necessity be, and is hereby dismissed.
JOHNSON, J., concurs by reason of stare decisis.
During pendency of this appeal on rehearing, and before the original opinion became final, plaintiff filed a motion to dismiss appeal, asserting, for the first time, that defendants failed to lodge their appeal herein within the time allowed by statute, by reason of which this court was and is without jurisdiction to decide the case on appeal.
The record shows that the trial court by several orders, extended the time in which to make, serve and settle case-made to July 15, 1958, the date on which the case-made and petition in error were filed in this court, but that the trial court had not extended the time for filing an appeal in this court. Under provisions of 12 O.S.1951 § 972, that time expired on June 7, 1958, three months after date of the order overruling defendants' motion for new trial.
In City of Cleveland v. Hambright, Okl., 320 P.2d 388, we held that an order of the trial court extending the time to make and serve case-made does not extend the time in which to file an appeal in this court.
We held in Love v. Weeks, Okl., 268 P.2d 215; East Side Baptist Church v. Morgan, 204 Okl. 685, 233 P.2d 957, and other cases, that where petition in error, with case-made attached, was not file within three months after order overruling motion for new trial or any order extending time for appeal, the appeal would be dismissed for lack of jurisdiction of this court to decide the appeal. This is in accord with the general rule. 4A C.J.S. Appeal & Error § 445, 3 Am.Jur. Appeal & Error, Sec. 727.
Defendants do not challenge the record in the instant case, nor the rules of law above-cited. Their sole contentions are that plaintiff waived, or is estopped to raise, the jurisdictional question by failing to assert same prior to rehearing or by previously submitting the appeal on the merits.
It is undoubtedly the general rule, as stated by defendants, and supported by numerous authorities, that questions which were not presented or considered on the original hearing will not be considered on rehearing. That rule, however, is subject to several exceptions. In 5 C.J.S. Appeal & Error § 1421, it is stated:
(Emphasis added).
In 3 Am.Jur., Appeal & Error, Section 744, it is said:
(Emphasis added).
In Hirshon v. Whelan, D.C.Mun.App.1954, 113 A.2d 484, it was held in the second paragraph of the syllabus:
'Notwithstanding general rule that question first raised on motion for rehearing on appeal will not be considered, jurisdictional questions first raised at such time will be considered.'
In West v. Edwards, 1943, 62 Nev. 1, 134 P.2d 932, 139 P.2d 1022, an exception was made to the general rule against granting rehearings on points raised for the first time on petition for rehearing, where such petition questioned jurisdiction on Supreme Court to entertain the appeal.
Defendants' contention that plaintiff waived or is estopped to raise a jurisdictional question for the first time on rehearing is wholly without merit. In Jones v. Norris, 1939, 185 Okl. 125, 90 P.2d 403, we held, in the first and second paragraphs of the syllabus:
This is in accordance with the weight of authority. 21 C.J.S. Courts § 109. 3 Am.Jur., Appeal & Error, Section 744.
Indeed, we have held that it is the duty of this court, sua sponte, to inquire into its own jurisdiction, whether raised by the parties or not. Biser v. Biser, 176 Okl. 210, 55 P.2d 446; Saunders v. Firestone, 176 Okl. 135, 54 P.2d 1024; Hamilton v. Browder, 176 Okl. 229, 54 P.2d 1025; Myers v. Berry, 3 Okl. 612, 41 P. 580.
For the reasons above-stated, I concur in the opinion of the majority that this court is without jurisdiction to decide this appeal, and that the same should be dismissed.
I am authorized to state that WILLIAMS, V. C. J., and BERRY, J., concur with the views herein expressed.
The present dismissing of this appeal would be quite untimely, and in my view would perpetrate a definite and very obvious injustice. We do not need to do so and the holder of this invalid judgment is not entitled to have us do so, nevertheless, the decision of dismissal of this appeal is about to validate and make permanent a large money judgment which is invalid and which has been determined to be invalid by solemn judgment and duly adopted and promulgated opinion of this court, as filed in this cause and printed in 30 O.B.J. 1147. That determination was made after hearing both parties on the merits by their extensive briefs. That decision was concurred in by all seven of the Justices who were present and participated. There was no dissenting view.
That decision was adopted and promulgated in written opinion on June 30, 1959. That decision is now fully determinative of the jurisdiction of this court, and of all rights of the parties as to both constitutional rights and statutory rights subject to the consideration of the pending petition for rehearing. There was no permission granted or requested...
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