Opinion
No. 12821
Opinion Filed February 12, 1924.
1. Appeal and Error — Record — Proceedings on Application to Vacate Judgment.
In order for this court to review the action of the trial court in denying application to set aside judgment, the proceedings must be brought to this court by case-made properly attested by the clerk and bearing the evidence of filing in the cause below.
2. Same — Defective Case-Made — Dismissal.
A case-made which does not bear proper attestation by the court clerk and does not show to have been filed in the cause below, does not present any questions in connection with the court's action to set aside a judgment for review in this court, and will be dismissed on motion of the defendant in error.
(Syllabus by Stephenson, C.)Commissioners' Opinion, Division No. 4.
Error form District Court, Nowata County.
Action by E. Messersmith to set aside a judgment rendered in a cause wherein Steve Kessler was plaintiff and the petitioner and B. F. Maxwell et al. were defendants. Application denied. Defendant E. Messersmith appeals. Affirmed.
Keith McGugin, J. Wood Glass, and F.A. Calvert, for plaintiffs in error.
C.H. Baskin, for defendant in error.
Judgment was rendered in this cause in favor of Steve Kessler and against E. Messersmith et al. Later E. Messersmith filed his application in the cause praying the court to set aside the judgment rendered therein. Upon due consideration of the application the same was overruled. The petitioner followed this action by filing other applications to set aside the judgment which were denied by the court. The defendant gave notice of appeal and caused to be prepared a case-made purporting to show the proceedings had in relation to the application to set aside the judgment. The purported case-made lodged in this court does not bear proper certificate of the court clerk, or properly attested, and does not show to have been filed in the cause below. The errors complained of, in order to be reviewed in this court, must be presented by proper case-made. For the errors and irregularities stated the case-made is a nullity and does not present any questions for review in this court. Ft. Smith W. R. Co. v. McKee, 38 Okla. 194, 132 P. 497; St. L. S. F. Ry. Co. v. Bonham, 43 Okla. 637, 143 P. 660; Latta et al. v. Way et al., 43 Okla. 638, 143 P. 663; Gibbs v. Tanner, 43 Okla. 477, 143 P. 189.
Therefore it is recommended that this cause be dismissed.
By the court: It is so ordered.