Opinion
No. 7439
Opinion Filed July 11, 1916.
Appeal and Error — Case-Made — Nullity.
In an absence of a waiver by the defendant in error, a case-made, signed and settled by the trial court before the expiration of the time granted for the suggestion of amendments, is a nullity.
(Syllabus by Bleakmore, C.)Error from District Court, Noble County; Wm. M. Bowles. Judge.
Action by B.A. Owen against Joseph Kostachek. Judgment for plaintiff and defendant brings error. Dismissed.
H.A. Johnson, for plaintiff in error.
P.W. Cress, for defendant in error.
This case presents error from the district court of Noble county, wherein judgment was rendered for the plaintiff on January 7, 1914. Thereafter, January 29th, motion for new trial was overruled, and defendant granted 60 days in addition to the time allowed by statute within which to prepare and serve a case-made. On February 24, 1914, defendant was granted an additional 60 days from the expiration of the time allowed in the original order within which to make and serve such case, and plaintiff was given 20 days thereafter to suggest amendments, the case-made to be settled and signed on 5 days' notice. On June 2, 1914, 29 days before expiration allowed him to suggest amendments thereto, and without waiver of such right, in the absence of plaintiff or his counsel, the case-made was settled and signed by the judge. Plaintiff now moves to dismiss this proceeding for the reason that the action of the trial judge in signing and settling case-made under circumstances was a nullity. In Cummings v. Tate, 47 Okla. 54, 147 P. 304, it is held:
"The time allowed by the trial court for the suggestion of amendments to a case-made commences to run, not from the date of the service of the case-made, but from the expiration of the period of extension. In an absence of a waiver by the defendant in error a case-made, signed and settled by the trial court before the expiration of the time granted for the suggestion of amendments, is a nullity."
The motion to dismiss is well taken and should be sustained.
By the Court: It is so ordered.