Opinion
No. 21515
Opinion Filed October 28, 1930.
(Syllabus.)
1. Appeal and Error — Nullity of Case-Made Signed and Settled Without Notice.
A case-made signed and settled without notice of the time and place of settlement, and such notice is not waived and there is no appearance of the opposite party, either in person or by counsel, is a nullity and brings nothing before this court for review.
2. Same — Recital in Certificate of Trial Judge Negatived by Record.
The certificate of the trial judge to a case-made is only prima facie evidence of the facts recited therein, and where the record on its face shows the recital in such certificate to be erroneous, the facts shown by the record will control.
3. Same — Error Presented by Transcript — Appeal not Perfected Within Six Months After Court's Action Complained of.
Where an alleged error of the trial court is presented by petition in error with transcript attached and such appeal is not lodged in this court within six months from the date of the action of the trial court complained of, this court does not acquire jurisdiction to review the same.
Error from District Court, Grady County; Will Linn, Judge.
Action by Leander Hall against J.P. Jones. Judgment for defendant, and plaintiff appeals. Dismissed.
J. Roy Orr and Leander Hall, for plaintiff in error.
F.E. Riddle, for defendant in error.
This is an appeal from a judgment rendered in the district court of Grady county on the 22nd day of October, 1929, in an action pending therein wherein Leander Hall was plaintiff, and plaintiff appeals.
The case-made attached to the petition in error filed in this case was settled and signed by the trial judge on the 7th day of July, 1930, without notice having been served upon the defendant in error of the time and place of settlement and in the absence of the defendant in error. The certificate of the trial judge settling the case-made contains a recital "that the plaintiff and defendant having waived the suggestion of amendments and stipulation as to the correctness of the case-made and waived notice of settlement and consents that the case-made be settled immediately and without notice." But an examination of the purported case-made shows the stipulation therein as to the correctness of the case-made and the waiver of right to suggest amendments and consenting to the settlement there of without notice is unsigned by the defendant.
In the case of Town v. Crawford, 106 Okla. 254, 234 P. 208, in a case wherein the condition of the record is almost identical to that of this case, this court said:
"This recitation in the certificate of the judge is an error on the face of the record. There is nothing in the record to show that any such stipulation was ever signed by the attorneys for defendants in error, plaintiffs below, and the trial judge acted on information that was incorrect. The certificate of the trial judge is not a verity, it is only prima facie evidence of the facts therein contained and may be shown to be untrue. Dehner v. Curry, 64 Okla. 164, 166 P. 81; Powell v. First State Bank of Clinton, 56 Okla. 44, 155 P. 500; City of Lawton v. Hills, 53 Okla. 243, 156 P. 297. In the case of City of Lawton v. Hills, supra, the second paragraph of the syllabus reads as follows:
"Under section 5248, Rev. Laws 1910, the certificate of the trial judge is prima racie evidence of facts therein recited, but is not conclusive and will be overcome when the case-made affirmatively shows on its face that the certificate is incorrect in some material respect'."
The certificate of the trial judge to the case-made as to such stipulation in this cause is therefore an error on the face of the record and the facts shown by the record will control. There was then in this case no waiver of the notice of the time and place of settlement of the case-made, and such case-made, having been settled and signed without notice of the time and place of settlement and without the same being waived and in the absence of the defendant, is a nullity and brings nothing before this court for review. Town v. Crawford, supra; Carr v. St. Louis-S. F. Ry. Co., 118 Okla. 223, 247 P. 38; Morris v. West Publishing Co., 118 Okla. 237, 247 P. 52; First State Bank of Oilton v. O'Bannon, 128 Okla. 16, 260 P. 1062; Liberty Life Ins. Co. v. Green, 133 Okla. 58, 270 P. 1111.
The petition in error presents alleged errors that may be reviewed on transcript, and the record is certified by the clerk of the trial court as such, but the appeal was not filed in this court until July 12, 1930, more than six months from the date of the judgment sought to have reviewed, and this court is without jurisdiction to review such alleged errors. Brigham v. Davis, 126 Okla. 90, 258 P. 740; Davis v. DeGeer, 91 Okla. 111, 216 P. 156; Richmond v. Beidleman, 33 Okla. 463, 126 P. 818.
Under this condition of the record in this cause, there is nothing before the court for review, and upon motion of the defendant in error the appeal is dismissed.
Note. — See under (1) 2 R. C. L. p. 159.