¶2Defendant applied by motion, supported by an affidavit, stating that the date of the order as shown in the abstract was incorrect and that instead of being dated May 27th, it should have been dated May 21, 1925; and asked leave to apply to the Circuit Court for a nunc pro tunc order complying with what he stated to be the actual facts of the case. The order was accordingly made by the Circuit Court. See Overton v. Stocker (Or.), 239 P. 816.
¶3Plaintiff now comes and again moves to dismiss on the ground that conceding the corrected order to be in accordance with the facts and May 21st to be the correct date, the defendant did not obtain any order of extension within the time between May 21st and June 10th, but did obtain a pretended order of extension dated June 13th, which would have been out of time and void. *126
¶4The defendant here attempts to occupy contrary positions. He applied to this court for leave to be permitted to ask the Circuit Court to make a nunc pro tunc order as to the date of May 21, 1925, on the theory that the order of May 27th, as it appears in appellant's abstract, was erroneous. But, he now claims that for the purpose of extending the time, the order that he asks to have corrected should be treated as though the date of May 27th was the correct date instead of May 21st. It is not shown that two orders were made or that he ever applied for any order on May 27th, or obtained one of that date except the one which he claims was erroneous. The complete record of the proceedings is not in the abstract, but, considering the abstract in connection with the other papers on file, the status of the case is this: By the order of May 21st, which is a nunc protunc order and which was in fact the only order made or applied for, defendant's motion to file the transcript expired on June 10th and he obtained no other order until June 13th, which it is beyond the jurisdiction of the court to grant. He cannot "hold with the hounds and run with the hare." If the date of the order, as shown in the abstract, was incorrectly stated as of May 27th when in fact it was May 21st and a nunc pro tunc order now issues to correct it, he cannot use the order which he says was erroneous as to date for the purpose of piecing out his time on an appeal. Upon the making of the nunc pro tunc order, later filed here, showing the correct date as of May 21st, the order dated May 27th became ineffectual for any purpose and defendant is clearly out of court.
¶5The motion to dismiss will be allowed.