Chatman v. Chatman

O’NEAL, J. This is an appeal from an order overruling a motion for a new trial in a judgment in a divorce proceeding. Judgment was entered January 26, 1949, and on March 11, 1949, plaintiff’s motion for new trial was overruled, and he was given 60 days to make and serve case-made. No case-made having been made and served within such time, the plaintiff after the extension of time had expired filed an application for a further order which was denied by the trial court. Thereafter, on June 25, 1949, plaintiff filed what is denominated “alias motion for new trial” to obtain a review of the order made by the trial court on June 23, 1949, refusing further time in which to make and serve the case-made. On August 15, 1949, plaintiff filed an application in the Supreme Court for an extension of time. This application was heard and overruled on August 25, 1949. On November 8, 1949, the trial court entered an order overruling the “alias motion for new trial.” The appeal is apparently from this order. A motion to dismiss has been filed for the reason that the case-made was not served and settled under a valid order extending the time in which to make and serve the same and is therefore a nullity and the proceeding based upon such case-made presents nothing for review. The motion must be sustained. The 60 days in which to make and serve a case-made expired May 10, 1949, and no valid order authorizing the making and serving of a case-made was made thereafter. The case-made was served January 6, 1950. This court has repeatedly held that a case-made not served within the time allowed by statute or within the time as extended by the trial court is a nullity and where the assignments of error cannot be reviewed otherwise than upon a case-made there is nothing before this court for review. Harrell v. Cole, 168 Okla. 423, 33 P. 2d 613; Pinkard v. MacGregor, 199 Okla. 536, 188 P. 2d 227. Since the alleged errors in the granting of divorce can only be presented [525] by a case-made, and the same was not served within the time allowed by statute, or an order extending such time, the appeal must be and the same is dismissed. DAVISON, C.J., ARNOLD, V. C. J., and WELCH, CORN, LUTTRELL, HALLEY, and JOHNSON, JJ., concur.