The opinion
SUPPLEMENTAL OPINION ON REHEARING
IRWIN, Justice.
In his petition for rehearing, defendant in error contends the time for filing the appeal herein expired December 10, 1963; that the same was not filed until December 11, 1963; therefore, this Court has no jurisdiction. We have carefully examined the orders of the trial court extending the time in which to make, prepare and serve case made and the time within which the appeal could be lodged and agree with defendant in error that if the appeal was not filed in this Court on or before December 10, 1963, the same was not filed within the time allowed and this Court did not acquire jurisdiction.
However, in a response to a motion to dismiss, the plaintiff in error represents that on December 10, 1963, he presented for filing his petition in error with case made attached, together with the required $25.00 filing fee to the Clerk of this Court, but the Clerk did not file the same because the case made did not contain a certificate of the trial judge showing the last day the appeal could be filed but demanded that said certificate be first submitted; that the petition in error with case made attached, together with the $25.00 filing fee was left in the possession of the Clerk of this Court and the required certificate was furnished' on December 11, 1963.
At the time the petition in error with the case made attached was presented and deposited with the Clerk of this Court on December 10, 1963, this Court had not construed Title 12 O.S.Supp.1963, § 972: (c). However, on July 7, 1964 this Court promulgated an opinion in the case of Poafpybitty v. Skelly Oil Co., Okl., 394 P.2d 515 , wherein it is held:
“Mere failure to attach a certificate specifying the latest date for the commencement of a proceeding in error in the Supreme Court does not render the ‘reception’ of an appeal ‘inadvertent’ *665 within the meaning of 12 O.S.Supp., 1963, Sec. 972(c), and if an appeal he timely brought, its dismissal is not required by that statute.”
It is therefore apparent the Clerk of this Court considered the failure to include the certificate above referred to, as jurisdictional.
We now have before us the affidavit of Andy Payne, Clerk of the Supreme Court, which is as follows: (omitting caption).
“I, Andy Payne, of lawful age and sound mind, having been first duly sworn, depose as follows:
“1. I am now, and was at all times mentioned herein, the duly elected, qualified and acting Clerk of this Court. “2. On December 10, 1963, a member of the Bar from Vinita, Oklahoma, known to me as Richard L. Wheatley, Jr., Esq., delivered to me at my office in the State Capitol in Oklahoma City, a petition in error with case made attached thereto, together with a cost deposit of $25.00, for the purpose of effecting the institution of an appeal in this cause. In the presence of Mr. Wheatley I did then examine the record so delivered, and, finding in the case made no certificate of the trial judge specifying the latest date for the ■commencement of this appeal, I declined to file the instruments tendered by Mr. Wheatley. Instead, I advised Mr. Wheatley to telephone the trial judge and request that the desired certificate be executed and sent to my office.
“3. All instruments delivered by Mr. Wheatley on December 10, 1963, were retained in my office until the following day, when the requisite certificate arrived by mail in a letter from the trial judge. I then regularly docketed this cause as filed on December 11, 1963. “Further affiant sayeth not.
“(Signed) Andy Payne.”
Upon depositing the petition in error with case made attached, together with "the $25.00 filing- fee, with the Clerk of the Supreme Court for filing, the plaintiff in error completed every duty imposed upon him for the commencement of the proceeding in error herein.
In the case of Tucker v. Thraves, 45 Okl. 209 , 145 P. 784 , we quoted from the Kansas case of Schmuck v. Missouri K. & T. Ry. Co., 85 Kan. 447 , 116 P. 818 , as follows:
“When the party appealing has complied with all that the law requires of him in order to perfect an appeal, his rights cannot be prejudiced, nor can the jurisdiction of this court be defeated, by the failure of the clerk of the trial court to perform a duty which the statute imposes upon him.”
In the body of the opinion, we said:
“ * * * It is the actual depositing in the office with the clerk of the trial court which in law constitutes the filing. When the case-made is deposited with the clerk or his duly authorized deputy, in his office with the intent and for the purpose of filing with the papers in the cause, in law it is a valid filing and effective as such, although the clerk neglects to place the file mark thereon or stamp same as filed; the purpose of which is to furnish evidence of such filing. * * * ”
And we held:
“A motion is filed to dismiss this appeal on the ground that the case-made was never filed with the papers in the case in the trial court. The case-made contains no file mark or stamp of the clerk, showing the same to have been filed in the office of the clerk of the trial court. A certificate and also an affidavit of the clerk are filed with the response to said motion, which show that said case-made was deposited with the clerk for the purpose of filing and placed with the papers in the cause, and was thereafter withdrawn, to be filed in the Supreme Court. Said certificate and affidavit of the clerk are uncontroverted. Held, that that under *666 the law the depositing- with the clerk for the purpose of filing constituted a valid filing, and this court is authorized and will receive evidence showing said case-made to have been filed. Held, further, the motion to dismiss should be overruled.”
In this connection see also In Re Toskey’s Estate, Sawyer v. Foster, 157 Okl. 216 , 11 P.2d 491 ; McIntosh v. Palmer, 173 Okl. 367 , 48 P.2d 815 ; and Bauer v. Samples, 181 Okl. 161 , 72 P.2d 813 .
The deposit with the Clerk of this Court of the petition in error with case made attached, together with the $25.00 filing fee, constituted commencement of the proceedings in error and the Clerk of the Supreme Court is directed to show the appeal as having been filed and commenced on December 10, 1963.
HALLEY, C. J., JACKSON, V. C. J„ and DAVISON, JOHNSON, WILLIAMS, BLACKBIRD and BERRY, JJ., concur.