Opinion
No. 19835
Opinion Filed November 27, 1928.
(Syllabus.)
1. Appeal and Error — Nullity of Case-Made Failing to Show Clerk's Attestation of Trial Judge's Certificate and Seal of Court Attached — Expiration of Time for Correction of Case-Made.
A case-made which fails to show the attestation of the clerk of the trial court to the certificate and signature of the trial judge, settling the same, and the seal of the trial court affixed thereto, and which is not corrected in this respect within the six months' period for the filing of appeals in this court, is a nullity, and brings nothing before this court for review. Held, further, that said case-made cannot be corrected in this respect after the expiration of the period allowed by law in which to appeal.
2. Same — Nullity of Case-Made not Filed with Clerk of Trial Court.
A case-made filed in this court in connection with a petition in error, which has never been filed in the office of the clerk of the trial court from which the appeal comes, is a nullity and cannot be considered by this court for the purpose of showing the proceedings of the court below.
Error from District Court, Kiowa County; E. L. Mitchell, Judge.
Action by Laurence Bracken against T. G. Schroyer. Judgment for plaintiff, and defendant brings error. Dismissed.
E. V. Rakestraw, for plaintiff in error.
Bailey McLaury, for defendant in error.
This is an appeal from a judgment of the district court of Kiowa county in an action wherein the defendant in error was plaintiff and the plaintiff in error was defendant. The motion for new trial was overruled on the 18th day of April, 1928. Attached to the petition in error filed in this court is a purported case-made settled and signed by the trial judge. The signature of the trial judge to the certificate settling the case-made is not attested by the court clerk, nor is the seal of the trial court affixed thereto. The purported case-made was not filed with the clerk of the trial court after the same was settled and signed by the trial judge.
Where a purported case-made attached to the petition in error is filed in this court without the attestation of the clerk of the trial court to the certificate and signature of the trial judge and without the seal of the trial court affixed thereon, as provided by section 785, C. O. S. 1921, and such case-made is not corrected within the time limited for appeals to this court by section 798, C. O. S. 1921, such case-made brings nothing before this court for review, and upon motion the appeal will be dismissed. Greer v. Cohn, 129 Okla. 66, 263 P. 136; State ex rel. Gross v. American National Bank of Oklahoma City, 107 Okla. 265, 232 P. 52; Campbell v. Williams, 104 Okla. 274, 231 P. 226; Hillery v. Cox, 125 Okla. 124, 256 P. 915.
The case-made must be filed with the papers in the trial court, and unless so filed, it is no part of the record and is a nullity, and there is nothing before this court from which it may review errors assigned. Greer v. Cohn, supra; School District Okmulgee Co. v. Hinchie, 62 Okla. 97, 162 P. 206; Dickerson v. Botchleott, Adm'rs, 122 Okla. 252, 254 P. 80.
The purported record attached to the petition in error is not certified by the clerk as a transcript, and the alleged errors set forth in the petition in error which might otherwise be reviewed upon transcript cannot be reviewed upon this record. Martin v. Milnor, 52 Okla. 232, 152 P. 388; Dickerson v. Botchleott, supra. The final order from which this appeal is taken was made on the 18th day of April, 1928, the six months in which to file an appeal expired on the 18th day of October, 1928, and it is therefore too late to supply the omissions in this purported record. Buell v. American Indemnity Co., 72 Okla. 95, 178 P. 884; Dickerson v. Botchleott, supra; Greer v. Cohn, supra. The certificate of the trial judge to the purported case-made not being attested by the clerk and the seal of the court affixed, such case-made is a nullity and brings nothing before this court for review. The purported case-made cannot be considered on a transcript, for the reason it is not so certified by the clerk of the trial court, and under the rule announced in the authorities above cited, the purported record cannot be corrected in these respects, and upon motion of the defendant in error this appeal is hereby dismissed.