Muskogee Electric Traction Co. v. Howenstine

LOOEBOURROW, J. On January 25, 1913, final judgment was rendered in the above cause against the plaintiff in error, to which exceptions were saved and time allowed to perfect an appeal; on July 25, 1913, the time for filing petition in error and case-made in this court expired. It has repeatedly been held that, after the expiration of the time allowed by law for perfecting the appeal, this court is without jurisdiction to entertain the same. See Tishomingo Elec. Co. v. Harris, 28 Okla. 10, 113 Pac. 713; Fairbanks-Morse & Co. v. Thurmond et al., 31 Okla. 612, 122 Pac. 167; Healy v. Davis, 32 Okla. 296, 122 Pac. 157; State Savings Bank of Manchester, Iowa, v. Bedden et al., 38 Okla. 444, 134 Pac. 20. On July 28, 1913, plaintiff in error was granted leave to file a second motion for new trial. The fifth ground of the same is as follows: “Because without the fault of the defendant, the party complaining herein, it becomes and is impossible to make case-made for appeal in said action.” Section 5035, Rev. Laws 1910, provides as follows: *545 “The application' for a new trial must be made at the term the verdict, report or decision is rendered, and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, or impossibility of making a case-made, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.” The section above quoted is the same as section 4198, St. Okla. 1893, except the clause “or impossibility of making case-made” is inserted in the revised law. Supporting this motion was the affidavit of counsel, B. B. Blakeney; the substance of the affidavit being as follows: That B. B. Blakeney and J. IT. Maxey are law partners and attorneys for the plaintiff in error; that they appeared for and were the attorneys for plaintiff in error in this case; that from January, 1913, until two- weeks preceding August 4, 1913, Mr. Maxey was continuously out of his law office and engaged as Speaker of the House of Representatives, and that Mr. Blakeney had been entirely attending to the business of plaintiff in error, and particularly this case; that he served a .case-made in this action upon the attorneys for defendant in error on May 13, 1913; that he examined the case-made and found it correct, except one exhibit was omitted which he was unable to find; that later he concluded the exhibit was indispensable to an appeal of the case; that he made every effort to get the exhibit from the stenographer, who stated from time to time that he had mislaid the exhibit and thought he could find it; on the 21st day of July the stenographer informed him that he had found the exhibit, but counsel was engaged in the trial of a case and told him he would get it; that he proceeded with the trial of the case in which he was then engaged, at which time he received a telegram from his wife in Winslow, Ark., stating that one of his children was very sick and he would have to come; that he finished the trial of the case in which he was then engaged and left Muskogee; that in the hurry and excitement incident to- finishing tlie trial of the case and arranging the trip to Arkansas he overlooked taking the exhibit, and his attention was not called to it until the 27th day of July, when he returned to Muskogee and filed his motion. In addition to this affidavit *546 the trial court heard the testimony of Mr. Blakeney and of Mr. Williams, reporter for the superior court of Muskogee; the latter testifying as follows: “Q. Did you ever tell Mr. Blakeney it (the exhibit) had been misplaced or lost? A. I have no recollection of telling him that. It might have been that during the trial of some case I told him I would get it for him, but the circumstances would be against that, because I knew where the plat was from the time it was turned over in my possession, and I have no recollection of having made that statement. Q. Could he have obtained it from you any time he had asked for it? A. Yes, if he had come to me at the time; he may have asked me for it during the trial of a case and maybe I didn’t have time to put my hands on it at that time, but, as he suggested, I don’t think I ever told him that it was misplaced. Q. Could he have obtained it any time he called at your office and asked for it? A. Yes, provided I was not engaged in the trial of a case.” At the close of this testimony the court overruled the second motion for a new trial, to which ruling the plaintiff in error excepted, and the time to make and serve a case-made was extended a period of four days; defendant in error was given three days after service of same to suggest amendments. Petition in error and case-made was filed in this court on August 5, 1913. The question of the impossibility of making the case-made was one of fact to be determined bj, the trial court, and that court, after hearing the evidence in support of the motion and being fully advised in the premises, found against plaintiff in error, and we think the testimony fully supports such finding. The filing of the second motion for a new trial did not toll the six months’ statute of limitations, and the time for appeal having expired, the second motion for new trial being properly overruled, the tidal court was without power to grant an extension after the time had expired for filing the appeal. See Mutual Trust Co. et al. v. Farmers’ Loan & Security Co., 27 Okla. 414, 112 Pac. 967; Maddox v. Drake, 27 Okla. 418, 112 Pac. 969; Lathim v. Schlack, 27 Okla. 522, 112 Pac. 968. The appeal is therefore dismissed. All the Justices concur.