Opinion
No. 3894
Opinion Filed January 12, 1915. Rehearing Denied March 9, 1915.
APPEAL AND ERROR — Settlement of Case-Made — Notice — Dismissal. 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.
(Syllabus by Sharp, C.)
Error from County Court, Cleveland County; F. B. Swank, Judge.
Action by Joseph Foral against M. C. Bogle. Judgment for defendant, and plaintiff brings error. Dismissed.
O. C. Tarpenning, for plaintiff in error.
W. L. Eagleton, for defendant in error.
The proceeding in error in this case is prosecuted by petition in error and case-made. May 23, 1912, counsel for defendant in error filed a motion to dismiss the same for the reason, among others, that the case-made fails to show that any notice was either served or waived of the time and place of settling the case-made, and that it did not show that the defendant was present at the time same was settled, or that he suggested amendments thereto, or had the opportunity to do so. An inspection of the record shows that it supports the claims made, and under the law there is no alternative but to sustain the motion.
Under this condition of the record, the case-made must be treated as a nullity, and the cause dismissed. First Nat. Bank of Collinsville v. Daniels, 26 Okla. 383, 108 P. 748; School Dist. No. 18, Creek County, v. Griffith et al., 33 Okla. 625, 127 P. 258; Flathers v. Flathers, 35 Okla. 342, 130 P. 134; Phillips v. Koogler, 35 Okla. 438, 130 P. 137; Jones v. Jones, 35 Okla. 453, 130 P. 139; Pain et al. v. Wylie et al., 35 Okla. 467, 131 P. 172; Moore v. Howard Merc. Co., 40 Okla. 491, 139 P. 524.
Numerous other grounds are set forth in the motion to dismiss, some, if not all, of which should be sustained. However, it is unnecessary to prolong this opinion by setting them forth.
The appeal should, therefore, be dismissed.
By the Court: It is so ordered.