220 P. 926 | Okla. | 1923
This action was brought to recover a forfeiture or liquidated damages for failure to comply with the terms of an oil and gas lease. The case was tried to a jury and verdict returned for plaintiff, upon which judgment was rendered. Defendant's motion for a new trial was overruled March 29, 1923, and 90 days allowed in which to prepare and serve case-made. This 90 day period expired June 27th, without case-made having been served or an additional extension of time having been applied for or granted. On June 28th *150 following, an order was entered by the trial court granting an extension of 60 days' additional in which to serve case-made and case-made was served within this period and filed in this court within 6 months from the date of the judgment or order appealed from.
Defendant in error moves the dismissal of the appeal upon the ground that case-made was not served within the time allowed by law or a valid extension granted by the court, citing In re Isparhecher Sarwarhie,
In Colbert v. Higganbotham,
"To authorize the making of an order to extend the time for serving a case-made, under section 5246, Rev. Laws 1910 (sec. 789, Comp. Stat. 1921), after the time allowed by law, or a former order extending the time, has expired notice must be given the opposite party of the application for such order, and a showing made to the court or judge that the failure to serve the case-made within the time previously allowed, and then expired, was because of 'accident or misfortune which could not reasonably have been avoided.' "
It seems that the motion should be sustained.
The appeal is dismissed.
All the Justices concur.