Opinion
No. 6740
Opinion Filed December 14, 1915. Rehearing Denied January 11, 1916.
APPEAL AND ERROR — Case-Made — Validity. Where the defendant in error had no notice of the time and place of signing and settling the case-made, and did not waive same, was not present or represented when the case-made was signed and settled, and had offered no suggestion of amendments, held such case-made is a nullity.
(Syllabus by Brett, C.)
Error from County Court, Grady County; N.M. Williams, Judge.
Action by J.T. Allen against M.V. Gordon and wife. Judgment for plaintiff, and defendants bring error. Dismissed.
J.W. Bartholomew and Maurice Smith, for plaintiffs in error.
Riddle Hammerly, for defendant in error.
This cause comes up on motion of defendant in error to dismiss appeal. The record contains no notice of the time and place of signing and settling of case-made, and no waiver of the same. It does not appear that the defendant in error was present or represented by counsel at the time case-made was signed and settled, and no amendments were suggested by him. It is well settled in this jurisdiction that the record must show either notice of the time and place of the signing and settling of a case-made, or a waiver of the same, otherwise the case-made is field to be a nullity. Harrison v. Penny, 28 Okla. 523, 114 P. 734; Ft. Smith Western Ry. Co. v. State National Bank of Shawnee, 25 Okla. 128, 105 P. 647; Thompson v. Fulton, 29 Okla. 700, 119 P. 244; Wood v. Jones, 32 Okla. 640, 122 P. 678; Walcher v. Burford, 47 Okla. 98, 147 P. 774; Martindale Deichman v. Shaha, 51. Okla. 670, 151 P. 1019.
We therefore recommend that the appeal be dismissed.
By the Court: It is so ordered.