Earnest v. Seran

Opinion by WILLfIAMS. O. The parties herein will be referred to as they appeared in the trial court. This is an- appeal from an order dissolving a temporary restraining order and refusing to grant plaintiff a temporary injunction. The record shows that the order dismissing-the temporary restraining order >and denying plaintiff a temporary injunction was made-on the 28th day of February, 1925. Motion for new trial was filed on the date of the judgment, and overruled on said date. The certificate of the trial judge settling the case-made was signed on the 2nd day of April, 1925, and the certificate of the clerk attesting the same was signed on the 3rd day of April, 1925. The case-made was filed 'with the clerk of the court on said 3rd day of April, and was filed with the clerk of the-Supreme Court on the 20th day of April, 1925. Motion was filed by the plaintiff to-dismiss the appeal for the reason that the same was not filed in the Supreme Court in time. Section 809, C. O. S. 1921, provides that case-made must be filed in the Supreme Court within 30 days from the modification of the injunction. The above section has been construed in the case of Harn v. Oklahoma City et al., 43 Okla. 501, 148 Pac. 1040, the syllabus reading as follows: “The petition in error in an appeal from an order discharging a temporary injunction must be filed in the Supreme Court within a time fixed by the trial court, not exceeding 30 days from such discharge.” And again in the case of White v. Hooker et al., 47 Okla. 453, 148 Pac. 719, the first paragraph of the syllabus is as follows: “A proceeding in error, for the purpose of reviewing an order discharging a temporary restraining order, will be dismissed when the petition in error is not filed with the clerk of the Supreme Court within 30 days after the making of such- order.” The record in this case shows that the order appealed from was rendered on the 28th day of February, 1925, and the petition in error was not filed in this court until the 20th day of April, 1925. The appeal must be dismissed. By the Court; It is so ordered. Note. — See under (1) 3 C. J. p. 1067 § 1074; p. 1082 § 1091.