Opinion
No. 3018
Opinion Filed September 11, 1912. Rehearing Denied October 22, 1912.
APPEAL AND ERROR — Record — Case-Made. The case-made and amendments having been transmitted to the trial judge, who settled and signed the same, but the case-made neither having been attested by the clerk, and the seal of the court thereto attached, nor filed in said court with the papers in the case, such case-made is a nullity, and cannot be considered in this court for the purpose of reviewing matters complained of in the trial court.
(Syllabus by the Court.)
Error from District Court, Sequoyah County; John H. Pitchford, Judge.
Action by Franklin Burrow, a minor, by his next friend, William H. Burrow, against the St. Louis, Iron Mountain Southern Railway Co. Judgment for plaintiff, and defendant brings error. Dismissed.
Vincent M. Miles, for plaintiff in error.
Kyle McCombs, for defendant in error.
Counsel for defendant in error move to dismiss this proceeding in error, on the ground that the case-made attached to the petition in error in this action does not show that it was ever attested by the clerk or filed with the papers in the case in the court below. Attached to said motion is the certificate of the district clerk, certifying that the records in his office do not show the filing of the case-made in said case, nor do said records show that said case-made was ever presented to him for attestation or filing, nor do they show any case-made ever filed or on file in said cause.
Counsel for plaintiff in error, in its response, says:
"The plaintiff in error states that the copy of this case-made was turned over to Kyle McCombs, attorneys of record for the defendant in error, with the request to them and understanding by them that, as soon as it served their purpose, they would file the same with the clerk, and the plaintiff in error states that they now have, in their office at Sallisaw, Oklahoma, this copy of the case-made."
It seems to be conceded that neither was the case-made attested by the clerk of the district court nor was the case-made filed with the papers in the case in the lower court. Section 6074, Comp. Laws 1909 (section 4444, St. Okla. 1893; section 4741, Wilson's Rev. Ann. St. 1903), provides that the case-made and amendments shall 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.
Such not having been done, the purported copy attached to the proceeding in error is a nullity, and this proceeding is dismissed.
TURNER, C. J., and HAYES, KANE, and DUNN, JJ., concur.