Opinion
No. 26120.
February 4, 1936.
(Syllabus.)
Appeal and Error — Dismissal Where Case-Made not Filed in Lower Court.
Under section 785, C. O. S. 1921 (section 534 O. S. 1931), it is mandatory that after the case-made has been certified, settled, signed, and attested as provided by law, the same must be filed with the papers in the lower court. There being no regularly filed case-made attached to the petition in error, the appeal is dismissed.
Appeal from District Court, Ottawa County; Dennis H. Wilson, Judge.
Action between Fred Harner and A. Beese. From the judgment the former appeals. Dismissed.
Chas. R. Weaver, for plaintiff in error.
Ballinger Ballinger, for defendant in error.
The record shows a certificate of the trial judge, as follows:
"I do now settle, allow, certify and sign the same as a true, correct, full and complete case-made, and do hereby order and direct that the same be attested by the clerk of this court, and seal attached thereto, and that said case-made be thereupon filed by said clerk with the papers in said cause."
The signature of the trial judge was not attested by the court clerk, the seal of the court was not attached thereto, and said case-made was never filed by said clerk with the papers in said cause. The statute (section 534, O. S. 1931) provides affirmatively that the case-made shall be attested by the clerk and the seal of the court attached, and shall then be filed with the papers in the case. This court has uniformly held that the statute above quoted is mandatory. See Miller v. Berryman, 169 Okla. 524, 37 P.2d 975, and cases therein cited.
The appeal is dismissed.
The Supreme Court acknowledges the aid of Attorneys Frank Wells and B.B. Blakeney in the preparation of this opinion. These attorneys constituted an advisory committee selected by the State Bar, appointed by the Judicial Council, and approved by the Supreme Court. After the analysis of law and facts was prepared by Mr. Wells and approved by Mr. Blakeney, the cause was assigned to a Justice of this court for examination and report to the court. Thereafter, upon consideration, this opinion was adopted.
McNEILL, C. J., and BAYLESS, WELCH, CORN, and GIBSON, JJ., concur.