Horner v. Sons

• Decision Date: 12 May 1909
• Docket Number: Case Number: 581
• Citation: 101 P. 1111,1909 OK 103,23 Okla. 905
• Parties: HORNER et al. v. GOLTRY & SONS.
• Court: Oklahoma Supreme Court

1909 OK 103

101 P. 1111

23 Okla. 905

HORNER et al. v. GOLTRY & SONS.

Case Number: 581

Supreme Court of Oklahoma

Decided: May 12, 1909

Syllabus

¶0 1. APPEAL AND ERROR--Case-Made--Settlement--Power of Judge to Extend Time--Special Judge. A special judge or judge pro tempore, while possessing the power to sign and settle a case-made after he has ceased to sit as judge, has no power to extend the time for its settlement and signing, and, where he attempts to do so, his act is a nullity.

2. APPEAL AND ERROR--Dismissal--Failure to File Brief in Time. A case will be dismissed in this court on motion where counsel for plaintiffs in error file no briefs within the time, and no stipulation in reference thereto is made, and no extension is either asked or allowed when such motion is properly served and filed asking such dismissal.

Error from District Court, Garfield County; Winfield Scott, Special Judge.

Action between Harry N. Horner and another and Goltry & Sons. From the judgment, Horner and such other bring error, and Goltry & Sons move to dismiss the petition in error. Petition dismissed.

Sturgis, Moore & Manatt, for plaintiffs in error.

Zinser & Helsell, for defendant in error.

DUNN, J.

¶1 Two question are presented in the motion to dismiss the petition in error in this case. The first is: May a special judge or a judge pro tempore, after he has ceased to sit in the cause, extend the time for making and serving a case-made.

¶2 The facts out of which this question arises are as follows: On May 12, 1908, the motion for new trial in the above-entitled cause was by Winfield Scott, the special judge who tried the same, overruled, and 60 days given plaintiffs in error within which to prepare and serve a case-made preparatory to appealing the case to this court. On July 10, 1908, on the application of plaintiffs in error, the said special judge granted an order extending the time for making and serving the case to August 12, 1908. The case-made was served August 11, 1908. Defendants in error filed their motion in this court moving the dismissal of the cause, urging the contention that the special judge was without authority to grant such extension of time; that this power is vested alone in the regular court or judge, who may upon good cause shown, extend the time for making a case, and fix the time within which the same shall be served. In our judgment defendant's motion is well taken, and should be sustained.

¶3 Section 544, art. 22, c. 66 (section 4742) Wilson's Rev. & Ann. St. Okla. 1903, provides:

"The court or judge may, upon good cause shown, extend the time for making a case, and the time within which the case may be served. * * * And in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire, before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired."

¶4 The power of a judge pro tempore to act under the foregoing statute has already been determined by this court in the case of City of Shawnee v. Farrell, 22 Okla. 652, 98 P. 942, wherein we held:

"After he has ceased to sit as a court, a judge pro tempore has no power to extend the time for making and serving a case-made in an action tried before him. Such an extension can only be granted by the regular district judge, who is, in fact, in possession of the office."

¶5 This same statute has also received a construction at the hands of the appellate courts of Kansas in a number of earlier cases. Hulme et al. v. Diffenbacher, 53 Kan. 181, 36 P. 60; Wallace v. Caldwell, 9 Kan. App. 538, 59 P. 379; Atchison, T. & S. F. R. Co. v. Leeman, 5 Kan. App. 804, 48 P. 932.

¶6 In the case of Hulme v. Diffenbacher, supra, referring to the section of the statute above quoted, Justice Allen, who wrote the opinion for the court, says:

"It will be noticed that the first part of the section gives authority to the court or judge to grant an extension of time. The last part gives authority to the judge who tried the case to sign and settle, notwithstanding the fact that his term of office may have expired. The reason for granting this power to the individual who has ceased to be an officer is perfectly apparent. He has knowledge of what occurred at the trial, while his successor in office may know nothing about it. The authority granted by the terms of the statute is limited to the one duty of

...