Opinion
No. 4022
Opinion Filed October 15, 1912.
APPEAL AND ERROR — Dismissal — Record. A proceeding in error, brought to this court on a case-made, where it does not appear, from the record or otherwise, that the defendant was present either personally or by counsel at the settlement, or that notice of the time thereof was served or waived, or what amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.
(Syllabus by the Court.)
Error from Creek County Court; Warren H. Brown, Judge.
Action between School District No. 18, Creek County, and William Griffith and L. L. Dougan. From the judgment, the School District brings error. Dismissed.
Oscar Cooper and F. W. Jacobs, for plaintiff in error.
McDougal Lytle, for defendants in error.
This case presents error from the county court of Creek county. May 29, 1912, there was filed in this court a petition in error with a purported case-made attached. July 26, 1912, counsel for defendants in error filed a motion to dismiss the same for the reason, among others, that neither the defendants in error nor their counsel were present at the settlement of the said case-made by the trial judge, nor was any notice of the time thereof served on the defendants in error or their counsel, nor was a notice of the time and place of said settlement, or the right to be present at said settlement, waived by the defendants in error or their counsel.
On inspection, the case-made verifies the statements of the motion, and furthermore, that no amendments were offered. It is the settled rule of this court, under numerous authorities, that a proceeding in error, brought on a case-made, where it does not appear, from the record or otherwise, that the defendant in error was present either personally or by counsel at the settlement, or that notice of the time thereof was served or waived, or what amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error. First Nat. Bank of Collinsville v. Daniels, 26 Okla. 383, 108 P. 748; Ft. Smith W. R. Co. v. State Nat. Bank of Shawnee, 25 Okla. 128, 105 P. 647; Richardson v. Thompson, ante, 124 P. 64.
The appeal is accordingly dismissed.
TURNER, C. J., and HAYES, WILLIAMS, and KANE, JJ., concur.