Robe v. Fullerton-Stuart Lumber Co.

PER CURIAM. On July 8, 1911, the Fullerton-Stuart Lumber Company, in the district court of ■ Okmulgee county, commenced this action against June J. Curry and J. H. Craig, partners, on an open account for lumber and material, and against Ellen Robe and her husband, T. L. Robe, to have a lien declared upon certain real estate owned by them, upon which this building material had been used. After demurrer confessed to his petition, plaintiff amended the same, whereupon defendants, after securing time to answer, defaulted, and the cause went to *618 trial ex parte. Thereupon the court.made findings of fact and rendered and entered personal judgment against defendants Curry and Craig for a sum certain in favor of plaintiff and declared a lien upon the land and ordered it sold to satisfy the debt. While proceedings were pending for the sale of the property, defendants moved the court on November 17, 1913, to set aside and vacate said judgment for the reason that they were not notified of the filing of the amended petition. .After various affidavits were filed pro and con on the proposition of whether or not they were, on March 17, 1914, the court overruled the motion, whereupon, that same day, defendants filed their motion for new trial, the object of which was to have the court review its ruling on the motion to vacate; and when the same was overruled, which it was on May 4, 1914, defendants were given 45 days to make and serve a case-made for appeal to this court, which was later extended 30 days. Motion is now made to dismiss this appeal for the reason that the case-made was not served within the time allowed by statute. Defendant in error contends that the time in which to make and serve case-made .began to run from the overruling of the motion to set aside the judgment, and, as the motion for new trial was unnecessary, it did not operate to extend the time to make and serve the case-made. This contention is correct. Powell v. Nichols et al., 26 Okla. 734, 110 Pac. 762, 29 L. R. A. (N. S.) 886; Bond v. Cook, 28 Okla. 446, 114 Pac. 723; Williamson v. Adams, 31 Okla. 503, 122 Pac. 499; Cowart v. Parker-Washington Co., 40 Okla. 56, 136 Pac. 153. By section 5244, Rev. Laws 1910, a party desiring to appeal has 15 days after the judgment or order is rendered to serve copy of case-made upon the opposing party" or his attorney. *619 As this case was not served within the statutory period or within any extension of time made within such statutory period, and as the errors complained of cannot be reviewed on a transcript of the record, the appeal is dismissed.