[1] The question here presented is whether the defendant in error's motion to dismiss the appeal should be granted. The plaintiff in error has perfected the appeal and asks this court to review the action of the District Court of McCurtain County, Oklahoma, taken on the 15th day of May, 1953, wherein the trial court overruled plaintiff in error's motion to vacate a judgment rendered against it by default on April 3, 1953.
[2] The defendant in error, as plaintiff below, and the plaintiff in error, as defendant below, will hereinafter be referred to as plaintiff and defendant as they appeared in the trial court.
[3] On April 3, 1953, plaintiff obtained a money judgment against the defendant by default. On April 11, 1953, defendant filed its motion to vacate said judgment. Plaintiff filed a response to said motion on May 15, 1953, and on the latter date, the motion to vacate the judgment was heard and denied. The defendant excepted to the order of the court but did not give any notice of appeal nor take any extension of time to make and serve case-made. On May 16, 1953, defendant filed its motion for a new trial. On May 21, 1953, defendant filed its written notice of intention to appeal to the Supreme Court from the order overruling its motion to vacate the default against it. The record fails to show that defendant at the time asked for or obtained an extension of time to make and serve case-made.
[4] On the 5th day of June, 1953, defendant's motion for a new trial was overruled. Defendant saved exceptions to said ruling and on that date, in open court, gave notice of its intention to appeal to the Supreme Court, and at the time the defendant was given sixty days from said June 5, 1953, to make and serve case-made. Plaintiff reserved exceptions to the Order of the Court granting sixty days in which to make and serve case-made.
[5] The case-made was served upon plaintiff and her attorney on the 16th day of July, 1953, sixty-two days after the motion to vacate the default judgment was overruled. No extension of time was asked for or received by defendant during the sixty day period granted to serve case-made. Thereafter, on August 7, 1953, upon defendant's application, it was granted twenty days additional time within which to appeal, in addition to the three months granted by statute. The purported case-made was settled on August 24, 1953, and the appeal was lodged in this court on August 27, 1953.
[6] In support of plaintiff's motion to dismiss the appeal they assert that the errors complained *Page 230 of cannot be presented by transcript; that the case-made here presented is insufficient to give this court jurisdiction because: (a) It was not served within the time required by law; (b) The filing of the Motion for a New Trial did not operate to extend the time for perfecting the appeal nor the time within which case-made is required by law to be served; and (c) The time for serving case-made expired fifteen days after the order of May 15, 1953, overruling the Motion to Vacate Judgment, and the purported order extending time, made on June 5, 1953, after the Motion for a New Trial was overruled was not a valid or effective extension of time.
[7] The defendant conceding that it filed its motion to vacate the default judgment within the term that the judgment was rendered here contends that the motion to vacate should be treated as a Petition to Vacate, and if so construed the plaintiff's motion to dismiss is not well taken as a motion for a new trial is necessary to set aside a default judgment under the provisions of Title 12 O.S. 1951 § 1031[12-1031], subdivisions 4-9, inclusive.
[8] Upon the trial the parties introduced evidence in support of and in opposition to the motion to vacate the judgment; therefore, the alleged errors cannot be presented by transcript. Campbell v. Aetna Bldg. Loan Ass'n, 183 Okla. 28, 79 P.2d 791; Harris v. Doggett, 195 Okla. 156, 155 P.2d 714; Hill v. Oklahoma Life Ins. Co., 173 Okla. 472, 50 P.2d 320.
[9] Therefore, we must examine the record to determine whether the defendant has filed in this court a case-made as provided by statute. Under Title 12 O.S. 1951 § 958[12-958], the case-made, or a copy thereof, must be served within fifteen days after the judgment or order is rendered, upon the opposite party or his attorney. Defendant did not serve a copy of the case-made upon the plaintiff or her attorney within the fifteen day period; therefore, the order of June 5, 1953, extending the time to make and serve case-made was a nullity. Robe v. Fullerton-Stuart Lumber Co., 47 Okla. 617, 149 P. 1157; Boulanger v. Midland Valley Mercantile Co., 36 Okla. 120, 128 P. 113; Clayton v. Clayton,202 Okla. 576, 216 P.2d 314.
[10] To circumvent the authoritative effect of the cited cases the defendant contends that a motion for a new trial was necessary under Title 12 O.S. 1951 § 1031[12-1031], subdivisions 4 to 9, and that its Motion to Vacate should be treated as a Petition to Vacate, and as an independent action, thus making its motion for a new trial effective as an extension of time within which to make and serve case-made.
[11] We think it is immaterial whether defendant characterizes the paper Motion to Vacate or Petition to Vacate. The proceeding had was within the term and the court had the inherent common-law right to entertain the matter. Williams v. Long Bell Lbr. Co.,203 Okla. 250, 219 P.2d 992.
[12] In Welborn v. Whitney, 179 Okla. 420, 65 P.2d 971, 972, we held:
"A petition to vacate an order or judgment, which is filed within the term in which the order is made or the judgment rendered, will be treated and considered as a motion to set aside such order or to vacate such judgment."
[13] In Corliss v. Davidson Case Lbr. Co., 183 Okla. 618, 84 P.2d 7, 8, we held:
"Proceedings to vacate or modify a judgment or order on the grounds mentioned in subdivisions 4 to 9, inclusive, Sec. 556 [12-556], O.S. 1931, 12 Okla.St. Ann. § 1031, subds. 4-9, if brought within the same term in which the judgment or order under attack was rendered, may be instituted either by motion or petition, notwithstanding Section 558 [12-558], O.S. 1931, 12 Okla.St.Ann. § 1033, and if it is begun by petition during the same term it will be treated as a motion."
[14] To the same effect is the holding in Commonwealth Life Ins. Co. v. Avery, 205 Okla. 274, 237 P.2d 433.
[15] We have examined cases relied upon by defendant and find that in each case the relief sought was by petition to vacate and the petitions were filed after the term in which default judgments were entered. *Page 231
[16] Our jurisdiction is challenged solely upon the ground that defendant has not complied with the terms of the statute with reference to the appeal. Under our former decisions we conclude that the challenge of jurisdiction is well taken. As aptly stated by Chief Justice Chase: "Judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the law confers."
[17] The motion to dismiss the appeal is granted.
[18] JOHNSON, V.C.J., and CORN, ARNOLD, and PERDUE, JJ., concur.
[19] HALLEY, C.J., and DAVISON, WILLIAMS and BLACKBIRD, JJ., dissent.
[20] WELCH, J., having certified his disqualification in this case, Honorable C.B. PERDUE, Wilburton, Oklahoma, was appointed special Justice in his stead.