Opinion
No. 5733
Opinion Filed October 12, 1915. Rehearing Denied November 9, 1915.
1. APPEAL AND ERROR — Case-Made — Service — Dismissal. In a proceeding in error by case-made the record must affirmatively show that the case-made was served within the statutory time or time allowed by the court or judge, and where it fails to so show the case-made is a nullity.
2. SAME — Case-Made as Transcript. Where a case-made is a nullity, because not served within time, the same cannot be considered as a transcript, where it is not certified by the clerk of the trial court.
(Syllabus by Dudley, C.)
Error from District Court, Oklahoma County; George W. Clark, Judge.
Action by M.M. Milnor against H.C. Finley and others. Judgment for plaintiff, and defendant H.H. Martin brings error. Dismissed.
C.H. Shubert, for plaintiff in error.
Ed S. Vaught, for defendant in error Milnor.
This is an action brought in the district court of Oklahoma county by the defendant in error Milnor, plaintiff below, against the plaintiff in error, Martin, and the defendants in error H.C. Finley and Anna Finley, his wife, Agnes Finley, Dora Patterson, and others, defendants below, upon two promissory notes executed by the defendants Finley and wife, and payable to the plaintiff, one for $15,000, and the other for $1,800, and to foreclose two mortgages securing said notes, signed by the defendants Finley and wife and H.H. Martin, covering certain real estate in Oklahoma City. Martin owned the fee to said real estate, and Finley owned a 99-year lease thereon. The defendant Dora Patterson guaranteed in writing the payment of the $1,800 note. On January 2, 1913, the case was tried, resulting in a judgment in favor of the plaintiff against Finley and wife and Dora Patterson for the amount due upon said notes and foreclosing the mortgages upon said premises. There was no appeal from this judgment. At the expiration of six months from the rendition of said judgment and at a subsequent term of said court, and on July 2, 1913, Martin filed an unverified motion in said court in said cause seeking to have the original judgment modified in certain respects. This motion was overruled, and exceptions saved, and Martin brings the case here for review. Milnor, Finley and wife, Agnes Finley, and Dora Patterson are made defendants in error here, and they waived the issuance and service of summons in error.
The plaintiff, Milnor, contends that this court has no jurisdiction to review the errors complained of, for the reason, among others, that the appeal is not properly perfected. This contention is correct. There are two methods of presenting a case on appeal to this court — one by case-made; and the other by transcript. Section 5240, Rev. Laws 1910; Wade v. Mitchell, 14 Okla. 168, 79 P. 95; Fortune v. Parks et al., 29 Okla. 698, 119 P. 134; Green et al. v. Incorporated Town of Yeager, 23 Okla. 128, 99 P. 906. The method attempted to be pursued in the instant case is by case-made. The record, however, does not affirmatively show that the purported case-made was ever served upon any of the defendants in error. Milnor, through his attorney, stipulated that the case-made was correct, but there is no affirmative showing that the case-made was served within the statutory time or at all upon him, and as to the other defendants in error there is no showing that it ever was served upon them or any one of them, and they did not join in the stipulation as to the correctness of the case-made. Finley and wife and Dora Patterson are necessary parties to the proceeding here, and, the case-made not having been served upon them or their attorneys of record, or upon the plaintiff, Milnor, the same is a nullity, and cannot be considered here. Jordan v. St. L. S. F. R. Co., 42 Okla. 804, 143 P. 46; Bettis v. Cargile, 34 Okla. 319, 126 P. 222; School Dist. No. 29, McClain Co., v. First Nat. Bank of Blanchard et al., 40 Okla. 568, 139 P. 989; Michael v. Isom et al., 43 Okla. 708, 143 P. 1053.
The purported case-made cannot be considered as a transcript, because it is not certified by the clerk of the court. City of Wagoner et al. v. Gibson et al., 32 Okla. 14, 121 P. 625, and cases there cited.
We are therefore without authority to review the errors complained of in the petition in error, and the proceedings in error should be dismissed.
By the Court: It is so ordered.