(dissenting).
I am unable to agree with the opinion promulgated by the majority of my associates in this case. I am of the opinion that the order entered by the trial judge on May 11, 1956, granting an extension of time in which to perfect the appeal was proper and legal and that the appeal was filed within time and further that the objection by the defendant in error could only be raised by cross appeal.
The majority opinion quotes 12 O.S.1955 Supp. § 972, and cites decisions of this court holding that appeals filed more than 20 days after settlement of the case made are not filed in time and will be dismissed. None of these decisions involve the proposition of an extension of time to file appeal pursuant to the provisions of 12 O.S.1955 Supp. § 962, in the fact situation presented by this appeal. The effect of the majority opinion is to ignore the provisions of Sec. 962.
For the purpose correlating these two statutes and to demonstrate how Sec. 962 supplements and applies to Sec. 972, I requote Sec. 972, as follows:
“All proceedings by case made for reversing, vacating or modifying judgments or final orders shall be commenced within twenty (20) days from the date the case made is settled; provided, however, that such proceedings must be commenced within three (3) months from the rendition of the judgment or final order complained of, provided, however, the trial court may in its discretion extend the period of time not to exceed six (ó) months from the date of judgment. * * *" (Italics mine.)
and quote pertinent portion of Sec. 962, as follows:
“The court in which any case has been tried and finally determined, may, from time to time make orders extending the time for the making and serving of a case, or the filing of the proceedings in error, for good cause shown, but not beyond the period in which the proceedings in error may be filed in the appellate court; and in the exercise of judicial discretion the said court or judge, upon notice to the adverse party, and after hearing, may make such orders after the expiration of the time fixed in the previous order, or time allowed by statute, but this section shall in no manner be construed as affecting the statutes fixing the limit of time within which an appeal or proceeding in error may be begun in the appellate court.” (Italics mine.)
The record reflects that notice was given and hearing was had and the trial court granted an extension to file the appeal and that the appeal was filed, all in the time and manner as set forth in the majority opinion.
Under the provisions of Sec. 972, appeals should be filed “within twenty (20) days” *245after settlement of case made and “within three (3) months” from rendition of judgment. This is the “time allowed by statute” in which to file the appeal. Sec. 972 also provides for the extension of the time “not to exceed six (6) months” from date of judgment. This is’the “limit of time” fixed by statute within which an appeal may be filed.
In Sec. 962 it is provided that orders of extension of time may be made in which to serve case made or to file appeals. This refers to extension prior to expiration of time fixed by “previous order, or time allowed by statute” and augments the similar provisions in Sec. 972. Now observe that insofar as is applicable to the case before this court, Section 962 provides that the court or judge may make “such orders” (orders of extension of time to file appeal), after the expiration of the time “allowed by statute” (this refers to the provision in Sec. 972 of filing appeal within 20 days after settlement of case made and within 3 months of rendition of judgment), but that the section (962) shall not be construed as affecting the statutes “fixing the limit of time” in which to file appeal (this refers to the 6 months limitation in Sec. 972). This is a logical interpretation of Sections 962 and 972 and clearly was the intention of the legislature in enacting these statutes. These amended statutes were enacted by the 1955 legislature after a report of a committee of the Bar Association suggesting the amendments. August 20, 1952, 23 Oklahoma Bar Journal 1407, 1408.
The majority decision states there is no statutory provision for enlarging the 20-day period. It is my opinion that this conclusion is contra to the express provisions of Section 962 allowing extensions after the expiration of the “time allowed by statute.”
Prior to the 1955 amendment Sec. 962 provided for extensions of time to file appeals after expiration of “time allowed by statute” in cases of “accident or misfortune which could not reasonably have been avoided by the party appealing”. 12 O.S.1951 § 962. The 1955 amendment substituted for this language the provision “in the exercise of judicial discretion” and added “after hearing”. Under the provisions of Sec. 962 prior to amendment this court repeatedly held that cross-appeal was the proper procedure for obtaining a review of the trial court’s order extending time to make and serve case made after expiration of previously allowed time. Pure Oil Co. v. Quarles, 183 Okl. 418, 82 P.2d 970, and other cases cited in the majority opinion. I see no logical reason why the principles announced in these decisions do not apply to the situation presented by the present appeal. It must be admitted that the provisions of Sec. 962, as amended, permitting extension of time to file appeal after expiration of previous order or time allowed by statute for appeal were intended to be operative. Such provisions apply to the condition in Sec. 972, as amended, requiring filing of appeal within 20 days after case made is settled, and within 3 months from rendition of judgment or final order. The record herein reflects notice, hearing and order granting extension of time to perfect appeal. The trial judge thereby exercised his judicial discretion and cross-appeal from his order was the only procedure for obtaining a review of the trial court’s order.
The appeal should not be dismissed.