Mitchell v. Great Western Oil & Gas Co.

• Decision Date: 15 December 1959
• Docket Number: No. 38534,38534
• Citation: 347 P.2d 1039
• Parties: M. J. MITCHELL, Henry Homes, Sr., and Charles Francis McCauley and William C. Wiederhold, co-executors of the Estate of Randall Gordon Piper, also known as R. G. Piper, deceased, Plaintiffs in Error, v. GREAT WESTERN OIL AND GAS COMPANY, a Corporation, James C. Meade, R. P. Ross and Firth C. Owens, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 1039

347 P.2d 1039

1959 OK 256

M. J. MITCHELL, Henry Homes, Sr., and Charles Francis

McCauley and William C. Wiederhold, co-executors of the Estate of Randall Gordon Piper, also known as R. G. Piper, deceased, Plaintiffs in Error, v. GREAT WESTERN OIL AND GAS COMPANY, a Corporation, James C.

Meade, R. P. Ross and Firth C. Owens, Defendants in Error.

No. 38534.

Supreme Court of Oklahoma.

Dec. 15, 1959.

Syllabus by the Court.

12 O.S.1957 Supp. § 972, requires that an appeal by case-made be filed in this court within 20 days from the date the case-made is settled and, also requires that such 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). Both of such requirements must be met in order to vest this court with jurisdiction of the appeal. In practical effect, this means that an appeal by case-made must be filed in this court before the expiration of 20 days from the date case-made is settled or the expiration of three months from the rendition of the judgment or final order complained of (or lawful extension of such period), whichever occurs first.

Appeal from District Court of Pontotoc County; John Boyce McKeel, Judge.

Appeal by M. J. Mitchell et al., et review a judgment entered in favor of Great Western Oil and Gas Company et al. Dismissed.

Willoughby & Cannon, Calvert L. Cannon, Ada, for plaintiffs in error.

A. W. Trice, Ada, for defendants in error.

HALLEY, Justice.

This is an appeal by case-made from the District Court of Pontotoc County. The case-made was settled on the 5th day of November, 1958, and the appeal was filed in this Court on December 19, 1958.

A motion to dismiss has been filed for the reason that the case-made was not filed within twenty days as provided by 12 O.S.1957 Supp. § 972. The motion must be sustained. Video Independent Theatres, Inc. v. Walker, Okl., 308 P.2d 958; Smith v. Independent School District No. 16, Payne County, Okl., 321 P.2d 430, 431.

Plaintiffs in error argue that the trial court extended the time to appeal to December 21, 1958, and the appeal was filed on December 19, 1958, which was prior to the expiration of the six month period authorized by 12 O.S.1957 Supp. § 972. A similar argument was made in Smith v. Independent School District No. 16, Payne County, supra. Therein we stated:

'12 O.S.1955 Supp. § 972, requires that an appeal by case-made be filed in this court within 20 days from the date the case-made is settled and, also requires that such 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). Both of such requirements must be met in order to vest this court with jurisdiction of the appeal. In practical effect, this means that an appeal by case-made must be filed in this court before the expiration of 20 days from the date case-made is settled or the expiration of three months from the rendition of the judgment or final order complained of (or lawful extension of such period), whichever occurs first.'

Under Section 962, 12 O.S.Supp.1959, the trial court cannot stay the time for filing an appeal beyond twenty days from the settlement of case-made as provided in Section 972, because this Section 962 provides in paragraph (a) as follows:

'* * * 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.'

Appeal dismissed.

WILLIAMS, V. C. J., and BLACKBIRD, JACKSON, IRWIN and BERRY, JJ., concur.

DAVISON, C. J., and WELCH and JOHNSON, JJ., dissent.

DAVISON, Chief Justice (dissenting).

I am unable to agree with the opinion promulgated by the majority of my associates in this case. I am of the opinion that the appeal procedure followed by the plaintiffs in error was in conformity with the statutes and that the appeal should not be dismissed.

The record reflects that the lower court made an order granting to the plaintiffs in error an extension of time within which to file this appear in the Supreme Court. The pertinent portion of this order is as follows:

'* * *; and that the plaintiffs be, and they are hereby granted, until December 21, 1958, to file the Case-made, with Petition in Error, in the Supreme Court of the State of Oklahoma and the time for filing such appeal or proceedings in error in the Supreme Court is extended to and including the 21st. day of December, 1958.'

The case made was duly settled in time on November 5, 1958. After due certification and filing in the office of the court clerk of Pontotoc County, the case made and petition in error were filed with the clerk of this court on December 19, 1958. This date of filing was more than 20 days after the settlement of the case made, but was within the time granted by the lower court. The question is, was the extension of time to December 21, 1958, legally valid to permit filing of the appeal after expiration of the 20 day period. In my opinion there was a legal and valid extension.

The controlling statutes are Sections 972 and 962, O.S.1955, Supp. of Title 12. The applicable portion of Sec. 972, is as follows:

'All proceedings by case made for reversing, vacating or modofying 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 mine.)

Section 962 is as follows:

'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...