McSpadden v. Mahoney

• Decision Date: 15 December 1964
• Docket Number: No. 40815,40815
• Citation: 402 P.2d 656
• Parties: Robin McSPADDEN, Individually and as Executrix of the estate of Anna M. Knight, Deceased, Plaintiff In Error, v. John M. MAHONEY, Sr., Defendant in Error.
• Court: Oklahoma Supreme Court

Page 656

402 P.2d 656

1964 OK 260

Robin McSPADDEN, Individually and as Executrix of the estate of Anna M. Knight, Deceased, Plaintiff In Error, v. John M. MAHONEY, Sr., Defendant in Error.

No. 40815.

Supreme Court of Oklahoma.

Dec. 15, 1964.

Rehearing Denied March 9, 1965.

Syllabus by the Court

1. In the construction of a statute, legislative intent must govern. In arriving at such intent the entire Act must be considered. When the intent of the Legislature can be gathered from the entire statute, words may be modified, altered or supplied to give the statute the force and effect which the Legislature intended.

2. The phrase, time for doing any act to perfect appeals, as employed in 12 O.S.1961 § 667, includes time to prepare, serve and file case-made.

3. In instances where the time (fifteen days) allowed a litigant-legislator or attorney-legislator by statute (Title 12 O.S.1961 § 958) to make and serve case-made or any enlargement thereof granted by the trial court commences during a legislative session and But for the provisions of Title 12 O.S.1961 § 667 would lapse during such session, such provisions of such section 667 serve to toll the running of such time until the adjournment of the session.

Appeal from the District Court of Craig County; Joseph G. Breaune, Judge.

Appeal, sought to be presented by casemade is challenged by motion of defendant in error for want of jurisdiction. Motion to dismiss denied and ordered that cause proceed to briefing on the merits.

Richard L. Wheatley, Jr., Vinita, Robert C. Lollar, Miami, and Ralph B. Brainard, Claremore, for plaintiff in error.

Tony Jack Lyons, Pryor, for defendant in error.

WILLIAMS, Justice.

The question to be determined herein is whether, under the provisions of 12 O.S.1961, § 667, an extension of 60 days to make and serve case-made granted by the trial court to an attorney-legislator, after the commencement of a session of the Legislature, extended the time for so making and serving case-made until 60 days after adjournment of the Legislature.

This matter comes on for consideration of motion of defendant in error to dismiss the appeal herein of plaintiff in error for the reason that the 'appeal was not timely perfected'.

The facts pertinent to the issue herein are that the trial court on December 28, 1962, entered judgment for defendant in error; that on such date plaintiff in error filed her motion for a new trial; that on January 15, 1963, such motion was overruled; that thereupon plaintiff in error in open court gave notice of appeal and was granted an extension of 60 days to make and serve case-made; that Mr. Lollar, one of the attorneys of record for plaintiff in error was a member of the Twenty-ninth Oklahoma Legislature, which was then in session; that the 29th Session of the Legislature convened prior to January 15, 1963, and adjourned on June 14, 1963; that the next order by the trial court was dated August 13, 1964, and it granted plaintiff in error 60 days from that date to make and serve case-made.

Title 12 O.S.1961, § 667, in pertinent part provides:

'* * * And when any litigant has given notice of appeal from any judgment of any court of record in this State to the Supreme Court or Criminal Court of Appeals and the time for doing any act to perfect such appeal has, or does hereafter lapse during the session of the Legislature, whether regular or special, and the said litigant is a member of the Senate or House of Representatives, of the State of Oklahoma, in such session, or his attorney of record is such member, such litigant or attorney shall have such time after the adjournment of the session of the Legislature to perform such act and complete his appeal as he had at the commencement of the session of the Legislature, of which he or his attorney of record was a member, and all acts done in the perfection of such appeals shall be as valid as if done within the time provided.'

The Court of Criminal Appeals of Oklahoma in the case of Fitzgerald v. State, 65 Okl.Cr. 1, 83 P.2d 581, had occasion to consider an appeal in which an attorney for the defendant was a member of the Legislature and in which case a judgment of conviction was rendered against the defendant after the Legislature had gone into session.

The Court in paragraph 3 of the syllabus of its opinion said:

'Under Ch. 2 Art. 1, Session Laws 1935, 12 Okl.St.Ann. § 667, where the defendant or his attorney of record is a member of the Senate or House of Representatives, and the Legislature is in session at the time a judgment of conviction is rendered, the defendant or his attorney shall have such time after the adjournment of the session to perfect his appeal as he had when the judgment was rendered.'

By the terms of 12 O.S.1961 § 958, plaintiff in error was granted 15 days from date of overruling of her motion for new trial (January 15, 1963) to make and serve case-made. The Court's order of that date extended such time in effect, for an additional 45 days, i. e., to a total of 60 days.

Such 60 day period, but for the effect of section 667, supra, would have lapsed on March 16, 1963, or considerably prior to adjournment of the Legislature (June 14, 1963).

The trial court made an order on February 11, 1963, (as distinguished from the January 15, 1963, order,) granting plaintiff in error 'such time after adjournment of the 29th session of the Legislature to perfect appeal herein as * * * [she] had at the commencement of the session.' This was a superfluous order because it merely purported to do what sections 958 and 667, supra, had already done and that fifteenday period had been extended previously to sixty days by the trial court's order of January 15, 1963. That is not to say that it would not be better practice to have the trial court in such cases spell out its meaning in a proper order.

The question then arises as to whether the Legislature by the enactment of section 667 intended that a period of time granted by statute or court order to make and serve case-made which commenced after a legislative session began should lapse during the session. We hold it did not.

Defendant in error calls our attention to the fact that in its order of January 15, 1963, the trial court extended the time within which plaintiff in error could make and serve case-made to 60 days, and that such period expired on March 16, 1963. He argues that the making and serving of casemade is not included within the phrase 'perfecting appeal' as used in section 667, supra. We do not agree.

Title 12, O.S.1961, chapter 15, Appeal and Error, § 956 provides in part that 'In all actions hereafter instituted by petition in error in the Supreme or other appellate Court the plaintiff in error shall attach to and filed with the petition in error the original case-made, filed in the court below, or * * *' etc.

The attaching of a case-made to a petition in error and the filing of same simultaneously therewith is a requisite part of a valid appeal by case-made.

In the case of Lacer v. Davis Hat Co., 189 Okl. 696, 119, P.2d 850, this Court said:

'Where the purported appeal is by case-made and there is a failure to comply substantially with Section 532, O.S.1931, 12 Okl.St.Ann. § 956, in furnishing a sufficient case-made and no reasonable excuse is offered for such failure, the proceedings in error will be dismissed.'

In the recent case of Wanner v. Wanner, Okl., 350 P.2d 241, this Court discussed the two requirements of 12 O.S.1955, Supp. § 972, (now 12 O.S.1961 § 972) that an appeal by case-made be filed in this Court within twenty days from the date the case-made is settled and that an appeal be filed within three months from the date of the rendition of the judgment or final order complained of (or lawful extension of such period). In the syllabus of that case we said:

'Both such requirements must be met in order to vest this court with jurisdiction of the appeal.'

It is to be noted that all references in our statutes to the making, serving and filing of case-mades to which we have referred appear in chapter 15 of Title 12, Civil Procedure, O.S.1961, under the heading 'Appeal and Error'.

We hold that when in section 667, supra, it used the expressions, 'for doing any act to perfect such appeal', 'to perform such act and complete his appeal' and 'all acts done in the perfection of such appeals' the Legislature not only intended to but necessarily did include acts done in furtherance of the making and serving of case-made.

By virtue of section 667, supra, if notice of appeal is given in a case in which a legislator is either a party-litigant or an attorney, before the beginning of a legislative session, and the time to make and serve case-made would elapse during such session, the time is extended beyond the adjournment of the session by the number of days such litigant- or attorney-legislator had at the commencement of the session to so make and serve case-made.

It is readily apparent that the Legislature failed to specify whether it intended that a period of time granted after the beginning of a legislative session and otherwise elapsing during the session would also be extended so that the litigant- or attorney-legislator would have the same maximum time after the adjournment of such session as he may have had during the session, as would be the case had his period of time to make and serve case-made commenced to run before the session started.

The expression 'time * * * has or does hereafter lapse' includes (1) time that started before the session and lapses and (2) time that started after commencement of the session and lapses. The failure of the Legislature to be more specific as to whether it meant the one or the other or both makes the statute ambiguous and uncertain in its effect and authorizes this Court in its interpretation thereof to read into the statute the Legislature's true intent to avoid such ambiguity and uncertainty.

It has been noted that in the event the...