In Re Bryan's Estate

PER CURIAM. The pertinent facts and issues parallel those in City of Cleveland, Oklahoma v. Hambright, Okl., 320 P.2d 388 in which case motion to dismiss was sustained this date. The motion for new trial was overruled on December 17, 1956; therefore, the time in which to file the appeal expired March 17, 1957, unless extended prior to said date. Prior to the last mentioned date the trial court extended the time to make and serve case-made to April 17, 1957, and on April 15, 1957, again extended the time to make and serve case-made to June 16, 1957. The appeal was filed in this court on June 11, 1957. At no time did the trial court grant an express extension of time within which to file the appeal. If it could be said that the extension to make and serve case-made beyond the three months period extended the time in which to file the appeal to April 17, 1957, then the last extension entered April 15, 1957, likewise extended the time in which to file the appeal to June 16, 1957, inasmuch as the two orders were worded substantially the same. However, under the rule announced in Adams v. Hobbs, 204 Okl. 85, 226 P.2d 913, an extension of time to make and serve case-made does not extend the time in which to file the appeal. Heretofore defendant in error moved to dismiss the appeal for the reason that it was not filed within the time allowed by law. This motion was overruled without prejudice to the right of defendant in error to resubmit the question in her brief on the merits. We have reconsidered such ruling in connection with our opinion in City of Cleveland, Oklahoma v. Hambright, and have concluded that we do not have jurisdiction to entertain this appeal. Hutchins v. Sperling, Okl., 316 P.2d 589, 590, involved the identical question here involved. In that case we said: “The petition in error was not filed within three months from the date of the judgment or final order or within the time granted by an authorized extension of time in which to appeal. 12 O.S.1951, § 972. This is a jurisdictional requirement that cannot be waived by the parties or overlooked by the Court. This Court will, upon its own motion, determine if its jurisdiction has been invoked. * * Since the appeal was not filed in time this Court did not acquire jurisdiction, and the appeal must be dismissed. Appeal dismissed. CORN, V. C. J., and HALLEY, WILLIAMS, BLACKBIRD and CARLILE, JJ-, concur. WELCH, C. J., and DAVISON and JOHNSON, JJ., dissent.