Opinion
No. 23462
November 27, 1934.
(Syllabus.)
1. Appeal and Error — Necessity for Filing Case-Made by Clerk of Trial Court — Dismissal.
The case-made having been certified by the court clerk, settled and signed by the trial judge, and attested by the clerk with the seal of the court thereto attached, but not thereafter filed with the papers in the case, is a nullity and cannot be considered by this court for the purpose of reviewing matters complained of in the trial court.
2. Same.
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 the 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, Ellis County; T.P. Clay, Judge.
Action by S.A. Miller against J.W. Berryman. Judgment for defendant, and plaintiff appeals. Dismissed.
C.B. Leedy, for plaintiff in error.
Madden, Adkins, Pipkins Kiffer and O.L. Aley (H. Adkins, of counsel), for defendant in error.
The plaintiff in error, who was plaintiff in the lower court, appealed this cause from a judgment pronounced in favor of defendant in error.
The case-made was certified by the court clerk, settled and signed by the trial judge, and attested by the clerk with the seal of the court thereto attached, but there is no filing mark in the case-made to indicate that the same was filed with the papers in the case as provided in section 785, C. O. S. 1921 (section 534, O. S. 1931).
Among other things, this section of the statute provides:
"* * * The case and amendments shall, upon three days' notice, be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk and the seal of the court to be thereto attached. It shall then be filed with the papers in the case. * * *"
This court has uniformly held that the statute above quoted is mandatory. St. Louis-I. M. S. Ry. Co. v. Burrow, 33 Okla. 701, 127 P. 478; St. Louis-S. F. R. Co. v. Blassingame Woodward, 76 Okla. 183, 184 P. 574; Backenstock v. Young, 121 Okla. 156, 248 P. 611; St. Louis S. F. R. Co. v. Bonham, 43 Okla. 637, 143 P. 660; Hall v. Phoenix Ins. Co., 82 Okla. 158, 198 P. 999.
The case-made not having been filed with the papers in the case after settling and signing by the court and attested by the clerk, this court cannot accept jurisdiction of this appeal.
The appeal is dismissed.
The Supreme Court acknowledges the aid of Attorneys Fred M. Carter, Hayes McCoy, and John F. Pendleton 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. Carter, and approved by Mr. McCoy and Mr. Pendleton, the cause was assigned to a Justice of this court for examination and report to the court. Thereafter, upon consideration, this opinion was adopted.