Opinion
No. 20310
Opinion Filed September 24, 1929.
(Syllabus)
Appeal and Error — Nullity of Case-Made Where no Notice of Settlement.
Where a case-made is settled and signed without notice of the time of the settlement of the case-made being given or waived and no stipulation entered into as to the correctness of the same and no appearance by the opposite party, either in person or by counsel, such case-made is a nullity and brings nothing before this court for review.
Error from District Court, Mayes County; Ad. V. Coppedge, Judge.
Action by Marvin C. Hammer and Marvin C. Hammer doing business under the name and title of Marvin C. Hammer Son against Walter Riley. Judgment for plaintiffs, and defendant appeals. Dismissed.
J. M. Hill, for plaintiff in error.
Wilkerson Brown, for defendants in error.
This is an appeal from the judgment of the district court of Mayes county rendered on the 18th day of September, 1928, in an action wherein the plaintiff in error was the defendant. A judgment was rendered for the plaintiffs in the trial court, and the defendant filed his motion for new trial, which was by the court overruled October 31, 1928, and the appeal lodged in this court April 29, 1929.
The defendants in error have filed herein their motion to dismiss the appeal upon the grounds the case-made is a nullity for the reason said case-made was presented to the trial judge, by him settled and signed without notice to the defendants in error and without the defendants in error having waived the same.
No notice to the defendants in error of the time and place of settlement of the case-made appears in the record filed in this court, nor is it shown therein that the notice was in any manner waived by the defendants in error. No stipulation was entered into as to the correctness of the case-made and no appearance by the defendants in error either in person or by attorney at the time of the settlement of said case-made, nor is it contended by the plaintiff in error that the necessary notice was either given or waived.
Where a case-made is settled and signed without notice of the time of the settlement of the case-made being given or waived, and no stipulation entered into as to the correctness of the same, and no appearance by the opposite party either in person or by counsel, such case-made is a nullity and brings nothing before this court for review. Liberty Life Insurance Co. v. Green, 133 Okla. 58, 270 P. 1111; First State Bank of Oilton v. O'Bannon, 128 Okla. 16, 260 P. 1062; Carr v. St. Louis S. F. Ry. Co., 118 Okla. 233, 247 P. 338; Morris v. West Publishing Co., 118 Okla. 237, 147 P. 52.
Other grounds for dismissal are contained in the motion of the defendants in error filed in this cause, but it is unnecessary to notice the same, as, under the condition of the settlement of the case-made by the trial judge as presented in this cause, the case-made is a nullity and brings nothing before this court for review, and the appeal is dismissed.