Pure Oil Co. v. Quarles, Case Number: 27659

• Court: Supreme Court of Oklahoma
• Writing for the Court: GIBSON, J.
• Citation: 183 Okla. 418,1938 OK 422,82 P.2d 970
• Parties: PURE OIL CO. et al. v. QUARLES et al.
• Decision Date: 21 June 1938
• Docket Number: Case Number: 27659

1938 OK 422
82 P.2d 970
183 Okla. 418

PURE OIL CO. et al.
v.
QUARLES et al.

Case Number: 27659

Supreme Court of Oklahoma

Decided: June 21, 1938

Syllabus

¶0 1. APPEAL AND ERROR - Necessary Showing for Extension of Time to Prepare and Serve Case-Made After Last Prior Valid Order Expired.

Under the provisions of section 538, O. S. 1931, 12 Okla. St. Ann sec. 962, extension of time within which to prepare and serve case-made, after the expiration of the last prior valid order authorizing the same, can only be granted when the evidence shows that by reason of accident or misfortune, which could not have been reasonably avoided, preparation and service of case-made could not have been had within the limitation of the prior order.

2. SAME - Mere Inadvertence, Misunderstanding, or Oversight not "Accident or Misfortune."

Mere inadvertence, misunderstanding, or oversight does not constitute accident or misfortune within the contemplation of the statute authorizing an extension on such grounds.

3. SAME - Nothing Presented for Review by Case-Made not Served Within Legal Time Unless Properly Certified as Transcript - Scope of Review on Transcript.

A case-made which has not been served within the time provided by statute or some legal extension of such time presents nothing to this court for review unless the same is properly certified as a transcript, in which case it presents only errors appearing upon the face of the record and which may be reviewed on transcript.

4. SAME - Cross-Appeal Proper Procedure for Review of Order Extending Time for Case-Made on Ground of Accident or Misfortune.

Cross-appeal by defendant in error is the proper procedure for obtaining a review of the trial court's order extending time to make and serve case-made on the ground of accident or misfortune, as provided in section 538, O. S. 1931, 12 Okla. St. Ann. 962.

5. APPEAL AND ERROR - Error in Judgment Appearing on Face of Record Proper Corrected Though no Objection Made Below.

Where an error in a judgment appears on the face of the record proper, this court will consider and correct the same, although no motion for new trial was filed, and no exception taken thereto in the trial court.

6. SAME - Review of Judgment Though no Exceptions Saved to Special Findings of Fact and Conclusions of Law.

Special findings of fact and conclusions of law made at the request of counsel and recorded in the journal become a part of the record proper, and, though no exceptions were saved thereto, this court, on proper transcript and petition in error, will review the action of the trial court in applying the law to the facts as found.

7. DAMAGES - Essentials for Recovery of Exemplary Damages in Tort Action.

To entitle a plaintiff to recover exemplary damages in an action sounding in tort, the proof must show some element of fraud, malice, or oppression The act which constitutes the cause of action must be actuated by, or accompanied with, some evil intent, or must be the result of such gross negligence, such disregard of another's rights, as is deemed equivalent to such intent.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.
Action by J.J. Quarles and another against the Pure Oil Company and another. Judgment for plaintiffs, and defendants appeal and plaintiffs cross-appeal. Affirmed in part, and reversed in part.

E.H. Chandler, Summers Hardy, Alvin Richards, and Hamilton & Kane, for plaintiffs in error.

McCoy, Craig & Pearson, for defendants in error.

GIBSON, J.

¶1 This action was instituted in the district court of Osage county by defendants in error, referred to herein as plaintiffs, against the plaintiffs in error, referred to herein as defendants, to recover damages resulting from the pollution of a stream by salt water.

¶2 This cause has been here before (Pure Oil Co. v. Quarles, 173 Okla. 153, 47 P.2d 124). After remand thereof for new trial the parties waived jury, and trial to the court resulted in judgment for plaintiffs, and defendants appeal.

¶3 In preparing their appeal defendants allowed their extended time for preparing and serving case-made to expire. Approximately 99 days after the expiration of the extension given, the defendants applied to the court for a further extension of time in which to prepare and serve case-made upon the ground of accident and misfortune which could not have been reasonably avoided, whereby they had been prevented from preparing and serving case-made within the time formerly granted. Pursuant to notice duly given, the application of the defendants was heard and granted by the trial court on October 19, 1936. The plaintiffs reserved exceptions thereto and have filed a cross-appeal here assigning as error the action of the trial court in granting the extension, and urge that such order is invalid in that it is unsupported by any competent evidence.

¶4 Upon showing of accident or misfortune which could not reasonably have been avoided by the party appealing, the trial court may make an order extending the time in such case after the expiration of the time fixed by statute or by previous orders. Section 538, O. S. 1931, 12 Okla. St. Ann. sec. 962. Cross-appeal by defendant in error is the proper procedure for obtaining a review of the court's order in such case. Bruner v. Eaton, 121 Okla. 249, 249 P. 734. In the absence of evidence of unavoidable accident or misfortune to support the order, the same will be reversed, and mere inadvertence, mistake, or oversight is not sufficient to support the same. Id.

¶5 In the Bruner Case, above, it was held that the failure of the district judge to receive and sign an order of extension which had been mailed to him within two days prior to the expiration of a previous order of extension did not constitute an accident or misfortune which could not reasonably have been avoided, and that an order of extension subsequently granted on such ground was invalid. In the case at bar the claim of accident and misfortune made by the defendants is based upon a misunderstanding of certain correspondence which had passed between the local attorney and division attorneys for the defendants. It appears that the local attorney understood that he was to receive further advices before ordering the case-made, and that the division attorneys were under the impression that their letters had definitely directed the local attorney to proceed with the appeal. In connection with the application, affidavits of the respective attorneys were attached thereto, and the local attorney states that the failure to obtain the order extending the time previously given was occasioned by misunderstanding of instructions and oversight. This was unfortunate, but does not constitute an accident or misfortune which could not reasonably have been avoided It further appears from the record that no steps were taken to order a case-made or to perfect the appeal, either within the time originally granted or for nearly 39 days thereafter. The evidence of the defendants showed neither diligence nor due care in preserving their right of appeal. Under these circumstances, the language of Bruner v. Eaton, supra, is very appropriate, wherein this court said:

"Under the facts shown by the evidence here, we can find no reasonable justification for the extension of the time and can reach no other conclusion but that the failure to obtain the extension of time was due to the defendants' own negligence."

¶6 Had the defendants exercised only a slight degree of care, they could have protected their record and obviated any necessity of invoking the provisions of section 538, O. S. 1931, but since they did not do this and failed to show any accident or misfortune sufficient to support the order which granted them a further extension of time in which to prepare and serve case-made, such order was ineffectual for any purpose. It follows that the case-made which has been filed in this court was not prepared and served within the time provided by statute or any authorized extension, and therefore the same presents nothing to this court for review except errors appearing upon the record as a certified transcript. Jones v. Blanton, 130 Okla. 200, 266 P. 438.

¶7 It is urged that there are certain errors appearing upon the face of the record proper, duly assigned in the petition in error...