DeWees v. Cedarbaum

• Decision Date: 05 March 1963
• Docket Number: No. 39300,39300
• Citation: 1963 OK 54,381 P.2d 830
• Court: Oklahoma Supreme Court
• Parties: P. B. DeWEES and H. F. Wilcox, Jr., Individuals d/b/a DeWees-Wilcox & Company, Plaintiffs in Error, v. Edward CEDARBAUM and Mary Cedarbaum, Defendants in Error.

Page 830

381 P.2d 830

1963 OK 54

P. B. DeWEES and H. F. Wilcox, Jr., Individuals d/b/a

DeWees-Wilcox & Company, Plaintiffs in Error, v. Edward CEDARBAUM and Mary Cedarbaum, Defendants in Error.

No. 39300.

Supreme Court of Oklahoma.

March 5, 1963.

As Amended on Denial of Rehearing May 13, 1963.

Syllabus by the Court

1. 12 O.S.1961 §§ 962 and 972, as amended in 1955, re-examined, and held, that the trial court may extend retroactively the three months appeal time allowed by Sec. 972, by following the procedures established in Sec. 962.

2. Adams v. Hobbs, 204 Okl. 85, 226 P.2d 913, and other cases, overruled insofar as they hold that the judgment appealed from becomes final after the expiration of three months without a prior order of extension of time to appeal.

3. 12 O.S.1961, §§ 962 and 972, as amended in 1955, re-examined, and held, that the trial court may after settlement of casemade, for good cause shown, extend prospectively the 20 days appeal time allowed by Sec. 972 but not beyond the limit of time allowed by the provisions of Sec. 972; and further held, that in the exercise of judicial discretion and upon notice to the adverse party and hearing, the twenty-day period may be extended retroactively within the six months period for good cause shown. Former expressions and any holdings to the contrary overruled.

4. Where in plaintiffs' pleadings the defendants are variously referred to as individuals and as partners, and the evidence shows that the defendants were in fact operating as partners, and the trial court pronounces judgment from the bench against the partnership without objection, and the record fails to disclose that these discrepancies were ever called to the attention of the trial court, an appeal from an order overruling the partnership's motion for new trial will not be vacated upon the ground that the defendants, as individuals, neglected to file motion for new trial.

5. An insurance agent or broker whom undertakes to procure and maintain insurance for another is under duty to exercise reasonable diligence and skill in obtaining and maintaining such insurance and give timely notice of his failure to his principal, but this duty does not require an agent at his peril to maintain insurance coverage where the evidence discloses that such agent represented no insurance company willing to carry the risk, and failure to give adequate notice of his failure to his principal will not authorize recovery where it appears from uncontradicted evidence that no other insurance company would have accepted the risk.

6. 36 O.S.1951 § 124, imposing personal liability upon an insurance agent on insurance contracts made by him for or on behalf of any company not authorized to do business in this state imposes no broader coverage than the insurance contract, and where the loss is not covered by the terms of the insurance contract no recovery can be had against the agent under the statute.

Appeal from the Court of Common Pleas of Tulsa County; James P. Goeppinger, Judge.

Action by Edward and Mary Cedarbaum, plaintiffs, against P. B. DeWees and H. F. Wilcox, Jr., d/b/a DeWees-Wilcox & Company, defendants, for recovery for a fire loss due to the failure of defendants, as brokers, to obtain fire insurance coverage. From judgment in favor of plaintiffs, defendants appeal. Reversed with directions.

Looney, Watts, Looney, Nichols & Johnson, Oklahoma City, for plaintiffs in error.

Milton W. Hardy, Margaret Lamm, Tulsa, for defendants in error.

JACKSON, Justice.

In this case we are asked to re-examine appellate procedure as set forth in 12 O.S.1961 §§ 972 and 962(a), and to overrule prior decisions of this court.

In the trial court the plaintiffs, Edward and Mary Cedarbaum recovered a judgment against defendants, DeWees and Wilcox, doing business as DeWees-Wilcox & Company, and on May 5, 1960, defendants' motion for new trial was overruled.

Thereafter on July 29, 1960, the case-made was settled and signed by the trial court. The petition in error, with case-made attached, was filed in this court on August 22, 1960. Thus it will be seen that the appeal was filed in this court three months and seventeen days after the motion for new trial was overruled and twenty-four days after the case-made was settled and signed by the trial judge. Since the trial court had not granted any extensions of time to appeal it is apparent that the appeal was filed too late under both the 'three months' and 'twenty day' limitation periods imposed by 12 O.S.1961 § 972, unless those periods of time to appeal may be extended retroactively. We have never heretofore so held:

On the same day that the appeal was filed in this court (August 22, 1960), the defendants (appellants) filed a motion to withdraw the case-made for amending, correcting and completion. This application was granted and thereafter the defendants caused a proceeding to be conducted in the trial court under the provisions of 12 O.S.1961 § 962, for the purpose of extending retroactively the 'three months' and 'twenty day' limitation periods for filing the appeal in this court.

At the hearing it was established that the law firm's attorney who had been handling the appeal for the defendants (appellants) had been ill, and other members of the firm had assisted in causing the case-made to be settled and signed on July 29, 1960. On July 30, 1960, the case-made was handed to the firm's attorney who had been handling the appellate proceedings with instructions that it was ready for filing in this court. It is the illness of this attorney, continuing after the case-made had been settled and signed, which is said to be responsible for the failure to file the appeal in this court on or before August 5, 1960. After hearing the matter the trial court concluded that it was divested of jurisdiction to extend the periods of time to appeal since the appeal had already been lodged in this court.

Thereafter on September 19 and 21, 1960, the defendants (appellants) filed an application and supplemental application (to which was attached the trial court proceedings) in this court for an extension of time under 12 O.S.1961 § 963, within which to perfect their appeal. This section of the statutes authorizes this court to extend the time for making and serving case-made and for appealing where the trial court improperly refuses to do so under the provisions of 12 O.S.1961 § 962. The application was presented to this court and on October 25, 1960, an order was authorized and entered extending the appeal time to November 5, 1960.

Plaintiffs (appellees) have maintained throughout these proceedings, and still maintain that the appeal was not filed within the statutory time and that this court does not have jurisdiction to review the case on appeal. We must therefore re-examine our proceedings to determine our jurisdiction to entertain the appeal. Jones v. Norris, 185 Okl. 125, 90 P.2d 403; Biser v. Biser, 176 Okl. 210, 55 P.2d 446; Keenan v. Chastain, 64 Okl. 16, 164 P. 1145; Auto Convoy Company v. Smith, Okl., 351 P.2d 1053.

We will first consider whether the statutory limitation of three months for appeals may be extended retroactively after the expiration of three months from the order overruling motion for new trial.

In 1955 the Legislature amended 12 O.S.1961 §§ 972 and 962, so that in pertinent part these two sections now provide as hereinafter shown.

' § 972. Time for proceedings to reverse, vacate or modify judgments or orders.--All proceedings by case made for reversing, vacating or modifying judgments or final orders shall be commenced within twenty (20) days from the date the case made is settled; provided, however, that such proceedings must be commenced within three (3) months from the rendition of the judgment or final order complained of, provided, however, the trial court may in its discretion extend the period of time not to exceed six (6) months from the date of judgment. * * *' (Emphasis supplied)

The emphasized language from Sec. 972 authorizes an extension of the three months limitation period but does not purport to say whether this extension of time beyond three months may be retroactive; and it establishes no procedure for such an extension.

However, Sec. 962(a) does establish a procedure for retroactive orders and specifically provides that such orders may be made after the expiration of the time fixed in a previous order, or allowed by statute. This power to extend time retroactively is not limited to making and serving of case-made but includes the power to extend the three months appeal time retroactively under the procedure established. As supporting this conclusion we quote Section 962(a) and emphasize those words which, when read in sequence without reference to the other portions, demonstrates the correctness of this conclusion:

' § 962. Extending time to make or serve case.--(a) The court in which any case has been tried and finally determined, may, from time to time make orders extending the time for the making and serving of a case, or the filing of the proceedings in error, for good cause shown, but not beyond the period in which the proceedings in error may be filed in the appellate court; and in the exercise of judicial discretion the said court or judge, upon notice to the adverse party, and after hearing, may make such orders after the expiration of the time fixed in the previous order, or time allowed by statute, but this section shall in no manner be construed as affecting the statutes fixing the limit of time within which an appeal or proceeding in error may be begun in the appellate court. * * *' (Emphasis supplied)

Upon reconsideration of the emphasized portions of the two sections of the statutes we are convinced that the trial court may extend retroactively the three months appeal time allowed by Sec. 972, supra. This conclusion is in accord with decisions of the Oklahoma Court of Criminal Appeals. Talliaferro v. State, 20...