Ashinger v. Local Union No. 276, United Brotherhood of Carpenters and Joiners of America
| Decision Date | 12 April 1921 |
| Docket Number | 11552. |
| Parties | ASHINGER v. LOCAL UNION NO. 276, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where it does not affirmatively appear that notice of time and place of signing and settling case-made was served on opposing party or his counsel, or that such notice was waived, or that opposing party was present in person or by counsel, the appeal will be dismissed on motion of defendant in error.
Where a motion for a new trial is unnecessary to present to this court for review an order or judgment appealed from, such motion and decision thereon by the trial court are ineffectual to extend the time within which to effect an appeal.
Appeal from District Court, Oklahoma County; James I. Phelps, Judge.
Action by F. C. Ashinger against Local Union No. 276, United Brotherhood of Carpenters and Joiners of America, and others. Judgment for defendants, and plaintiff appeals. Dismissed.
Everest Vaught & Brewer, of Oklahoma City, for defendants in error.
Motion of the defendant in error to dismiss the appeal alleges that it cannot be considered on transcript for the following reasons: It does not contain the process, ruling, orders, and judgment of the trial court; it is not certified to by the court clerk; the matters presented in this court for review are not a part of the record proper; the petition in error was not filed in this court within six months after the final judgment rendered by the trial court; there is not a proper certificate of the trial judge; and there is no copy of the judgment of the trial court filed in this court.
It is also alleged that the appeal cannot be considered on case-made because it does not affirmatively appear that notice of the time and place of signing and settling the case-made was served on the defendants in error or their counsel, or that such notice was waived, or that they were present in person or by counsel at the settlement of said case-made; it is not shown that there was any service of the purported case-made on defendants in error or their counsel and because the attempted case-made was not filed with the papers in the case in the trial court as required by section 5242, R. L. 1910, chapter 218, Sess. Laws 1917.
Plaintiff in error in his response to the motion to dismiss states that the record filed in this court is not a transcript and is not relied upon as such, but that it is intended as a case-made. It will therefore be considered as a case-made for the purpose of this motion.
It must affirmatively appear that...
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