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Docket Number

No. 7045

Attorney(S)

L. F. Roberts and A. F. Sims, for plaintiff in error. Leahy MacDonald and R. B. Boone, for defendants in error.

Judges

BROWN, J.

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Smart Summary

McLEAN v. McLEAN et al., No. 7045 — Supreme Court of Oklahoma (Opinion Filed March 2, 1915)

Trial Court: District Court, Osage County (R. H. Hudson, Trial Judge). Opinion by BROWN, J. All Justices concur.

Factual and Procedural Background

This matter is an appeal by Walter Williford McLean (plaintiff in error) from a judgment of the District Court of Osage County. Judgment was rendered on June 18, 1914, at which time the plaintiff in error was given 90 days to serve the case-made for appeal. The original 90-day period expired on September 16, 1914.

On September 15, 1914, an extension of 40 days from that date was granted (which would have expired October 25, 1914). A further extension of 15 days was later allowed, bringing the last permissible date for service to November 9, 1914. The case-made was not served until November 14, 1914.

On December 12, 1914, plaintiff in error filed a motion requesting an extension of time to serve the case-made, stating that findings of fact and conclusions of law were not filed until November 9, 1914, that counsel believed they had until November 15, 1914 to file and serve, and admitting the case-made was in fact served November 14, 1914 but "was served out of time" and "should have been served on or before the 9th day of November, 1914."

The district court subsequently attempted to enter an order, dated December 12, 1914 and indorsed filed November 12, 1914, purporting to extend time to include November 14, 1914. Defendant in error filed a motion to dismiss the appeal on January 25, 1915. No answer to that motion was filed nor was time extended for filing one. The Supreme Court dismissed the appeal.

Legal Issues Presented

Whether an order purportedly granting an extension of time to serve a case-made for appeal, made after the expiration of the time previously allowed, is valid.
Whether service of a case-made made after the expiration of the allowed time but purportedly validated by a subsequent order (made after expiration) supports an appeal to the Supreme Court.

Arguments of the Parties

Plaintiff in Error's Arguments

Counsel asserted that findings of fact and conclusions of law were not filed until November 9, 1914.
Counsel stated their belief that they had until November 15, 1914 to file and serve the case-made.
Counsel admitted the case-made was served on November 14, 1914, but acknowledged that the service was "out of time" and that service should have been made on or before November 9, 1914.
Plaintiff in error sought a retrospective extension to validate the November 14, 1914 service.

Defendants in Error's Position

Defendants in error filed a motion to dismiss the appeal on January 25, 1915. The opinion does not recite additional substantive reasoning or argumentation contained in that motion within the text provided.
No answer to the motion to dismiss was filed, nor was time extended for filing one.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined the record chronology and the motions and orders concerning the time for serving the case-made. The key factual findings relied upon by the court were:

Judgment date: June 18, 1914, with 90 days initially allowed for service (expired September 16, 1914).
Subsequent extensions were granted providing, in aggregate, that service could have been timely made up to November 9, 1914.
The case-made was in fact served on November 14, 1914—five days after the last permissible date.
The plaintiff in error's December 12, 1914 motion admitted that the previously allowed time had expired and requested an extension to include the November 14 service date.
The district court attempted to enter an order purporting to extend the time retroactively; that order was dated December 12, 1914 but indorsed filed November 12, 1914, and was therefore beyond the court's jurisdiction to make.

Based on these factual determinations, the court concluded that the district court had no jurisdiction to make an order extending the time after the previously allowed period had expired. Because the attempted extension was void, it could not operate retrospectively to validate the late service of the case-made. Consequently, the service of the case-made was ineffective to confer appellate jurisdiction, and the appeal could not be maintained.

Holding and Implications

APPEAL DISMISSED.

Holding: The Supreme Court held that an order purporting to grant an extension of time in which to serve a case-made for appeal, when made after the expiration of the previously allowed time, is a nullity; service of the case-made pursuant to such a void order does not support an appeal.

Direct consequences: The appellant's appeal was dismissed for lack of timely service of the case-made and because the attempted post-expiration extension was void. The opinion does not discuss broader implications beyond the effect on these parties.

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McLEAN v. McLEAN et al.

APPEAL AND ERROR — Service of Case-made — Extension of Time — Dismissal. An order, purporting to grant an extension of time in which to serve case-made for appeal to the Supreme Court, made after the expiration of time formerly allowed, is a nullity, and appeal based upon service of case-made thereunder will be dismissed.

(Syllabus by the Court.)

BROWN, J.

Motion to dismiss appeal was filed in this case by defendant in error January 25, 1915; and no answer there has been filed, nor time for filing same extended. An examination of the record discloses that judgment was rendered June 18, 1914, at which time 90 days was given in which to serve case-made, which time expired September 16, 1914. September 15, 1914, an extension of 40 days from that date was granted, which would have expired October 25, 1914, but for a further extension allowed of 15 days on and from that date bringing the time within which service could be made up to November 9, 1914, but same was not made until November 14, 1914. On December 12, 1914, plaintiff in error filed motion for an extension of the time in which service of case-made could be had, which reads in part as follows:

"That the findings of fact and conclusions of law made and found by the court in the above entitled case were not made and filed in the office of the clerk of the district court until November 9, 1914; that when these findings of fact and conclusions of law were filed with the clerk, the attorneys for the said Walter Williford McLean were under the impression that they had until the 15th day of November, 1914, in which to file and serve said case-made with the attorneys for Thomas J. McLean et al.; that it is the belief of L. F. Roberts, one of the attorneys for Walter Williford McLean, that the judge of the district court was of the opinion that the attorneys for the said Walter Williford McLean had until the 15th day of November, 1914, in which to file and serve said case-made with the attorneys of Thomas J. McLean et al.; that the case was in fact serve on the attorneys for Thomas J. McLean et al. on the 14th day of November, 1914, but the said L. F. Roberts has since discovered that the same was served out of time, and that same should have been served on or before the 9th day of November, 1914."

Upon the application containing the above admission that the time formerly allowed for service of case-made had expired more than 30 days prior thereto, the court attempted to make an order extending such time to include the 14th day of November, 1914, said order being dated December 12, 1914, and indorsed filed November 12, 1914. This order, it is clear, the court had no jurisdiction to make, and the same was therefore void and did not operate retrospectively so as to render valid the service of said case-made after the time therefor had expired.

The appeal is therefore dismissed.

All the Justices concur.

McLEAN v. McLEAN, ET AL