Opinion
No. 12430
Opinion Filed May 29, 1923.
(Syllabus.)
Appeal and Error — Case-made — Failure to File Below — Dismissal.
A case-made filed in this court which does not show that it has been filed in the office of the clerk of the trial court is a nullity, and where such a case-made remains in this court after the expiration of the statutory time in which to perfect an appeal, on motion the appeal will be dismissed. Banks et al. v. Watson et al., 40 Okla. 450, 139 P. 306.
Error from District Court, Atoka County; J.H. Linebaugh, Judge.
In the matter of determination of heirship of Emerson Sexton, deceased. From judgment favorable to Peter Homer, J.I. Murray and others, by Watson Palmer, guardian, bring error. Appeal dismissed.
I.O. Correll and Trice Davison, for plaintiffs in error.
J.G. Ralls, for defendant in error.
Peter Homer, the defendant in error, filed his motion on April 21, 1923, in this case to dismiss the appeal.
It appears from the record that the petition in error was filed in this cause on the 5th day of July, 1921, with case-made attached, but that said case-made was never filed in the office of the clerk of the district court of Atoka county, where said cause was originally tried and judgment rendered, and that more than six months have expired since the rendition of said judgment.
In the case of Banks et al. v. Watson et al., 40 Okla. 450, 139 P. 306, this court held:
"A case-made filed in this court which does not show that it has been filed in the office of the clerk of the trial court is a nullity, and where such a case-made remains in this court after the expiration of the statutory time in which to perfect an appeal, on motion the appeal will be dismissed."
It is, therefore, clear that the appeal in this case must be dismissed, and it is so ordered.
All the Justices concur.