Egolf v. Rice

Opinion by WILLIAMS, C. Tbis is an appeal from an order or judgment of tbe trial court dissolving a writ of garnishment. Issue was joined upon the truthfulness of the answer of the garnishee. A jury was waived and the issues were submitted to the court, who after hearing the evidence • entered judgment on the 8th day of September, 1924, dissolving said writ of garnishment, and the petition in err r was not filed in this c-ourt until the 22nd day of May, 1925. In tbe case of Exchange Nat. Bank of Ardmore v. Merritt et al., 108 Okla. 184, 235 Pac. 180, in the second paragraph of the syllabus, it is held: “Where an appeal is taken fr m an order dissolving a garnishment, such an appeal, under section 809, C. O. S. 1921, must be filed in this court within 30 days from date of the order, and an order of the trial c urt extending the time 60 days in which to serve case-made is void, and if case-made, is not served nothin 15 days from date ' f tbe order, the same is a nullity, unless, within the 15 days, the trial court has made a valid order of extension.” And in the body ' f the opinion said: “The order of January 16, 1925. extending the time 60 days in which tci serve ease-made is void for the reason that it extended the time beyond the time in which the appeal could be .filed in this court, as provid *285 ed by section 809, Comp. Stat. 1921. Bank v. Spink, 21 Okla. 468, 97 Pac. 1019; Smith v. Eldred, 31 Okla. 352, 121 Pac. 195; Moore et al. v. City of Perry et al., 110 Okla. 8, 234 Pac. 625.” In the case of Berry-Beall Dry Goods Co. v. Adams, 87 Okla. 291, 211 Pac. 79, it is held in the third paragraph of the syllabus: “A garnishment proceeding under the statutes of Oklahoma is so- effectually an attachment that it is included within the' term 'attachment.' An cirder made by the trial court discharging a garnishee is an order discharging an attachment under said section 5266. supra, and an appeal therefrom must be lodged in the Supreme Court within 30 days from- the making thereof, in order to con'er jurisdiction upon this cdurt to hear and determine the same.” And in the case of First National Bank in Oklahoma City v. Ada Music Co. et al., 89 Okla. 29, 213 Pac. 732 the court said: “This is an appeal from an order of the lower court dissolving a garnishment. The garnishment was dissolved on the 17th day of July, 1922, and the appeal was fib'U in this court on the 22nd day of August. 1922. The appeal not haying been filed within 30 days, as provided by sectil n 809. Comp. Stat., same is dismissed. Bank v. Spink, 21 Okla. 468, 97 Pac. 1019.” In the case of Smith v. Eldred et al., 31 Okla. 352, 121 Pac. 195, in the syllabus it is held: “When an order discharging or dissolving a garnishment is made (section 4759, Wilson’s Rev. & Ann. St 1903), the party who obtained such garnishment having excepted to such order for the purpose elf having the same reviewed in the Supreme Court upon petition in error, the e" urt or judge granting said order shall, upon application of the proper party, fix the time, not exceeding 39 days from the discharge or dissolution of said garnishment, witnin which such petition in error shall be filed with the clerk of the Supreme Court; and this rule applies, notwithstanding the order to dissolve is entered upon a verdict of a jury after the trial of the garnishment proceedings was had upon its merits.” The above case is identical with the instant case, except a jury was waived by the parties in the case at bar and the issues submitted to the court. The statute applies as well to proceedings in garnishment as in attachment. Berry-Beall Dry Goods Co. v. Adams, 87 Okla. 291, 211 Pac. 79. The petition -'n error not having been filed in this court within 30 days from the granting of the order dissolving the writ of garnishment, the motion to dismiss the appeal is sustained, and the appeal dismissed.4 By the Court: It is so ordered. Note.—See under (1) 3 C. J. P. 1040 § 1032. (2) 3 C. J. p. 1067 § 1074; 4 C. J. p. 566 § 2380.