Opinion
No. 20660
Opinion Filed October 8, 1929. Rehearing Denied November 19, 1929.
(Syllabus.)
Appeal and Error — Nullity Of Case-Made Settled and Signed by Other Than Trial Judge.
A case-made must be settled and signed by the judge who tried the case, and where the case is tried by one judge and the case-made is settled and signed by another and no showing is made as to the inability of the trial judge to do so, the case-made is a nullity and brings nothing before this court for review.
Error from District Court, Kay County; Claude Duval, Judge.
Action by L.F. Krause against L.C. Knox. From the judgment of the trial court in favor of the plaintiff, the defendant appeals. Dismissed.
W.J. Mahan, Ralph C. Haynes, and J.F. Murray, for plaintiff in error.
Maris Maris, for defendant in error.
This is an appeal from the judgment of the district court of Kay county rendered on the 18th day of January, 1929, in an action wherein plaintiff in error was defendant. The issues of fact were submitted to the jury with Claude Duval, judge of the district court of Kay county, presiding judge at the trial. As such presiding judge he rendered judgment in the cause, and made the order overruling the motion for new trial. The case-made attached to the petition in error was settled and signed by W.C. Rice, a judge of the district court of the same district in which the cause was tried.
The defendant in error now moves this court to dismiss the appeal upon the grounds the case-made is a nullity and brings nothing before this court for review for the reason it was not settled and signed by the judge who tried the cause.
No showing is made in the record attached to the petition in error and filed in this court as to the inability of the trial judge to settle and sign the case-made. The case-made must be settled and signed by the judge who tried the case, and where the case is tried by one judge and the case-made is settled and signed by another, and no showing is made as to the inability of the trial judge to do so, the case-made is a nullity. Town of Guymon v. Triplett, 71 Okla. 298, 177 P. 570; Davis v. Lambard-Hart Realty Investment Co., 88 Okla. 301, 213 P. 78; Brown v. Marks, 45 Okla. 711, 146 P. 707; Arkansas Fertilizer Co. v. Brattin, 127 Okla. 9, 260 P. 43.
The record attached to the petition in error is certified to by the court clerk of the trial court as a transcript, but the assignments of error set forth in the petition in error cannot be reviewed on transcript.
For the reason the case-made is not settied and signed by the judge who tried the cause, such case-made is a nullity and brings nothing before this court for review, and the appeal is dismissed.
Note. — See under (1) anno. 30 A. L. R. 721; 2 R. C. L. p. 158; R. O. L. Perm. Supp. p. 351. See "Appeal and Error," 4 C. J. § 2018, P. 362, n. 23.