Opinion
No. 32918.
April 1, 1947.
(Syllabus.)
APPEAL AND ERROR — Nullity of case-made not settled as required by statutes.
Where there has been neither a settlement of the case-made as required by 12 O.S. 1941 § 958[ 12-958], nor a stipulation of settlement as authorized by 12 O.S. 1941 § 966[ 12-966], such case-made is a nullity, and where the alleged errors can only be reviewed by case-made the appeal will be dismissed.
Appeal from District Court, Creek County; C.O. Beaver, Judge.
Proceeding on appeal from an order admitting a will to probate. From a judgment for S.W. Reynolds et al., Everett Lane Thomas appeals. Dismissed.
Hendrix Wolf, of Stillwater, for plaintiff in error.
Speakman Speakman, of Sapulpa, and Kermit Nash, of Drumright, for defendants in error.
This is an appeal by Everett Lane Thomas from a final order of the district court entered in a proceeding on the probate of a will. The appeal is by petition in error and there is attached to the petition and made an exhibit a purported case-made which has never been settled by the trial court nor is there any stipulation of a settlement of the case-made.
A motion to dismiss has been filed for the reason that the case-made has not been settled. The motion must be sustained.
This court has many times held that there has been no settlement of the case-made as required by 12 O. S. 1941 § 958, and no stipulation of settlement as authorized by 12 O. S. 1941 § 966, the purported case-made is a nullity, and where the alleged errors can only be reviewed by case-made the appeal will be dismissed. Jernigan v. Commerce Trust Co., 136 Okla. 12, 275 P. 1049; Alexander v. First National Bank, 136 Okla. 251, 277 P. 667; Barker v. Southwest Homes Corporation, 162 Okla. 77, 19 P.2d 141.
The record is certified as a transcript but by reference to the allegations of error it may be seen that the only errors complained of are those that must be presented by case-made.
Appeal dismissed.
HURST, C.J., and RILEY, OSBORN, BAYLESS, WELCH, GIBSON, and ARNOLD, JJ., concur.