Smith v. Independent School Dist. Number Sixteen, Payne County

• Decision Date: 19 November 1957
• Docket Number: No. 37933,37933
• Parties: C. R. SMITH, Plaintiff in Error, v. INDEPENDENT SCHOOL DISTRICT NUMBER SIXTEEN, PAYNE COUNTY, Oklahoma, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 430

321 P.2d 430

1957 OK 296

C. R. SMITH, Plaintiff in Error, v. INDEPENDENT SCHOOL DISTRICT NUMBER SIXTEEN, PAYNE COUNTY, Oklahoma, Defendant in Error.

No. 37933.

Supreme Court of Oklahoma.

Nov. 19, 1957.

Rehearing Denied Feb. 4, 1958.

Syllabus by the Court

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.

Appeal from the District Court of Payne County; R. L. Hert, Judge.

Proceeding in eminent domain in which defendant appeals from jury verdict assessing damages. Appeal dismissed.

Swank & Swank, Stillwater, for plaintiff in error.

Hoel & Horton, Stillwater, for defendant in error.

WILLIAMS, Justice.

This proceeding in eminent domain was instituted by Independent School District Number Sixteen, Payne County, Oklahoma, hereinafter referred to as plaintiff, against C. R. Smith, hereinafter referred to as defendant, to acquire title to 31 1/2 acres of land owned by said defendant, and to assess the damages sustained by such defendant. Commissioners in condemnation were appointed, which commissioners viewed and appraised the land involved and assessed defendant's damages by virtue of the appropriation of such land in the sum of $70,000. Defendant objected to the award by the commissioners and demanded a trial by jury. Trial to a jury was had and on February 5, 1957, a verdict was returned fixing defendant's damage by reason of the appropriation of the land involved at the sum of $81,506. Defendant filed a motion for a new trial which was overruled by the court on March 1, 1957, at which time defendant gave notice of appeal, and was granted by the court forty-five days from such date to make and serve case-made on such appeal. On April 5, 1957, the court, by order, granted defendant a further extension of thirty days from the 15th day of April 1957, within which to make and serve case-made on appeal. On May 11, 1957, the court granted defendant a further extension of time to and including the 29th day of June, 1957, within which to make and serve case-made on appeal, and further granted defendant an extension of time in which to file the appeal in the Supreme Court to and including the 31st day of August, 1957. On June 28, 1957, the court granted defendant a further extension of twenty days from June 29, 1957, within which to make and serve case-made on appeal. The case-made was served on July 5, 1957, and settled by the court on July 15, 1957. Thereafter, the case was filed in this court on August 10, 1957, some twenty-six days after the date of the settlement of the case-made.

Plaintiff has moved to dismiss the appeal herein for the reason that the...