Willoughby v. City of Oklahoma City

OPALA, Justice,

dissenting.

There are at least three reasons why the appellant may not secure corrective relief from this court:

I

This case comes to us as a petition by the plaintiff [appellant] for certiorari to review a certified interlocutory order which, in a proceeding for new trial under 12 O.S.1981 § 655, sustained the defendant’s [appel-lee’s] motion to quash and its application for protective order to prevent the plaintiff from “piercing the sanctity of the jury room” by attempting to subpoena a former juror in the case for the purpose of securing testimony. The order in question, which admittedly precluded the plaintiff from proceeding further with her quest for the § 655 relief, was made on June 23, 1983. Plaintiff did not seek appellate review. of this order within 30 days of its rendition.

An order that precludes a party from proceeding further in the case or precludes it from obtaining the relief sought is a final, appealable order. 12 O.S.1981 § 953; Centorp Corp. v. Gulf Production Corp., 183 Okl. 436, 83 P.2d 181 [1983]; Rule 1.11(b)(5), Rules on Perfecting a Civil Appeal, 12 O.S.Supp.1984, Ch. 15, App. 2.

Because the plaintiff failed to appeal from the terminal order of June 23, 1983, the error, if any made therein, is now beyond the reach of our reviewing cognizance.

II

The order sought to be reviewed here was reaffirmed on November 29, 1983 by the assigned successor of the original trial judge who had retired from service. The November 29th order provides that this § 655 proceeding is to remain arrested “pending the appeal of this [o]rder by certi*890fied question”. Another certification order was later procured on February 10, 1984; the petition for certiorari was filed within 30 days from the second (February 10, 1984) certification order.

The 30-day time limit for lodging a proceeding to review a certified interlocutory order runs from the date such order is certified for review. This time limit cannot be extended either by the trial court or by this court. These are the plain and unequivocal terms of Rule 1.51(b), Rules on Perfecting a Civil Appeal, 12 O.S.1981, Ch. 15, App. 2.

Rule 1.51(b) has been violated. Neither trial nor appellate courts have a roving commission to extend appeal time. Sowers v. Archer, 161 Okl. 148, 17 P.2d 422, 423 [1932]. The purported recertification order of February 10, 1981/. is a nullity. Defendant’s motion to dismiss this proceeding should be granted.

Ill

The question sought to be reviewed in this case is not one “on the merits of the controversy”. It does not raise an issue pertinent either to the plaintiff’s original claim in tort for wrongful death or to the city’s defense to that claim. Instead, it tenders for our review a procedural point arising after judgment. Postjudgment issues are dehors the already-decided merits. See definition of “merits” in Flick v. Crouch, Okl., 434 P.2d 256, 261 [1967] and Tidmore v. Fullman, Okl., 646 P.2d 1278, 1283 [1982] (Opala, J., dissenting).

The pertinent statute, 12 O.S.1981 § 952(b)(3), plainly requires that the order that is certified for our review affect a substantial part of the merits of the controversy. Extant case law stresses this requirement. See, Young v. Oklahoma City, Okl., 524 P.2d 22, 23 [1974] and Community National Bank of Warr Acres v. Beasler, Okl., 520 P.2d 813, 814 [1974]; see also White v. Wensauer, Okl., 702 P.2d 15 [1985], for a certiorari that had to be recast as an original jurisdiction proceeding because it did not raise an issue on the merits.

Inasmuch as the certified postjudgment issue to be reviewed here is dehors the merits, the order does not present a matter properly within this court’s cognizance under the provisions of § 952(b)(3).

Evenhanded fairness calls for undeviating enforcement of conformity to orderly process. Judicial institutions are without power to grant dispensation from jurisdictional prerequisites that are statutorily imposed. O’Bannon v. Oklahoma Tax Commission, Okl., 633 P.2d 741, 742 [1981].

I would dismiss this proceeding for corrective relief because (a) it is untimely as an appeal from the final order of June 23, 1983; (b) it is untimely as a petition for certiorari to review the trial court’s certified order of November 29, 1983; and (c) it does not tender an issue that affects “the merits” of this already-adjudicated controversy.