Opinion
No. 15698
Opinion Filed July 27, 1926.
(Syllabus.)
Appeal and Error — Necessity for Filing Case-Made by Clerk of Trial Court — Dismissal.
Under section 785, Compiled Oklahoma Statutes, 1921, the case-made is required to be filed and sealed by the clerk of the trial court, and when the case-made, attached to the petition in error, has not been filed in the court below, this court cannot accept jurisdiction of the appeal. There being no regularly filed case-made attached to the petition in error, the appeal is dismissed.
Appeal from Court of Common Pleas, Tulsa County; Robert D. Hudson, Judge.
Action between Otis J. Backenstoch and E. D. Young and others. From the judgment, the former appeals. Dismissed.
Owen, Yancey Fist, for plaintiff in error.
James H. Sykes, for defendants in error.
This cause is appealed from the court of common pleas of Tulsa county, and the defendants in error have filed their motion to dismiss the appeal for the reason that the case-made was not filed by the court clerk of the trial court with the other papers in the case, as required by section 785, Compiled Oklahoma Statutes, 1921.
Among other things, this section provides:
"* * * The case and amendments shall, upon three days' notice, be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case. * * *"
The case-made herein is signed by the judge of the trial court, attested by the court clerk, and the seal of the court is attached thereto, but there is no filing mark in the case-made to indicate that the same was filed in the case, or that it ever was a part of the records of the case, and this court cannot take jurisdiction of the appeal which does not have a regularly filed case-made attached to the petition in error as required by the statute.
The plaintiff in error refers to the instrument as a transcript in his petition in error, but the same is entitled "case-made," is signed and settled as a case-made by the trial judge, and is so attested by the clerk of the court below.
The appeal is dismissed.