Opinion
No. 3166
Opinion Filed May 14, 1912.
1. APPEAL AND ERROR — Dismissal — Grounds. A proceeding in error, brought to this court on a case-made, where it does not appear from the record or otherwise that the defendant was present, either personally or by counsel, at the settlement, or that notice of the time thereof was served, or waived, or what amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.
2. SAME — Effect of Appearance. The entering of a general appearance by the defendant in error in a proceeding in error in this court does not waive the right to object to the sufficiency of the case-made, where it is shown that neither the defendant in error nor his counsel waived, or were given notice of, the time and place of the signing and settling of the same, when no amendments are suggested.
(Syllabus by the Court.)
Error from Okmulgee County Court; George A. Johns, Judge.
Action between Thomas E. Richardson and Joseph N. Thompson. From the judgment, Richardson brings error. Dismissed.
Eaton Carter, for plaintiff in error.
Mathews Ellison, and Van H. Albertson, for defendant in error.
This case presents error from the county court of Okmulgee county. October 12, 1911, there was filed in that court a petition in error with a purported case-made attached. April 24, 1912, defendant in error filed a motion to dismiss the same, for the reason, among others, that neither the defendant in error nor his counsel was present at the settlement of the said case-made by the court below; nor was any notice of the time thereof served on the defendant in error or his counsel; nor was a notice of said settlement or the right to be present at said settlement waived by the defendant in error or his counsel. An inspection of the case-made verifies the facts stated in the motion; and, furthermore, that no amendments were offered. It is contended in the answer brief that, by reason of defendant in error having entered his general appearance in this cause, he is not entitled to be heard to complain that he was not present at the time the case-made was settled and signed. As the conclusion to which we have come necessitates a dismissal of the case, it will not be necessary to consider the other causes assigned.
It is the settled rule of this court, under numerous authorities, on a proceeding in error, brought on a case-made, where it does not appear from the record or otherwise that the defendant was present, either personally or by counsel, at the settlement, or that notice of the time thereof was served or waived, or what amendments suggested, if any, were allowed or disallowed, that the same will be dismissed on motion of defendant in error. First Nat. Bank of Collinsville v. Daniels, 26 Okla. 383, 108 P. 748; Ft. Smith W. R. Co. v. State Nat. Bank of Shawnee, 25 Okla. 128, 105 P. 647, and authorities therein cited. The signing and settling of a case-made is a judicial act; and, in order that the trial judge may acquire jurisdiction to act, it is essential that notice of the time and place of the signing and settling of the case-made be either given or waived, or that amendments suggested be allowed; and where this is not done the signing and settling of the case-made is without force or effect.
Nor will the entering of a general appearance by the defendant in error waive this defect. J. W. Ripey Son v. Art Wall Paper Mills, 27 Okla. 600, 112 P. 1119.
The motion to dismiss must be sustained.
TURNER, C. J., and HAYES, WILLIAMS, and KANE, JJ., concur.