Courtney v. Moore
| Decision Date | 28 September 1915 |
| Docket Number | Case Number: 5361 |
| Parties | COURTNEY v. MOORE et al. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--Record--Amendment. A record, which contains no copy of the final judgment sought to be reversed, presents no question to this court for its determination; but where it appears from the case-made that a final judgment was actually rendered, which has been omitted from the case-made, the plaintiff in error will be allowed to withdraw the record for amendment, under the provisions of Rev. Laws 1910, sec. 543.
2. SAME--Right of Appeal--Order of Court. Appeals in this state are matters of statutory right, and no order of the court is necessary allowing an appeal.
3. SAME--Case-Made--Time to Make and Serve--Extension--Order. It is not necessary for the application to extend the time to make and serve a case-made to appear in the transcript, and where the court below made such an order, which recited that it appeared to the court, for good cause shown, that the time should be extended, and granted an extension, held that it sufficiently appears that such order was made on application of the plaintiff in error.
4. SAME--Case-Made--Time to Make and Serve--Extension--Notice--Finding of Fact. It is not necessary that the defendant in error have notice of the application to extend the time to make and serve a case-made, and the finding of the trial judge that good cause has been shown is a finding of fact that this court cannot review.
5. SAME--Case-Made--Time for Making and Serving--Extension. An order extending the time to make and serve a case-made for more than six months from the judgment appealed from is void; but where the motion for a new trial was overruled on March 1st, and an extension of 90 days was given to make and serve the case, and before this time expired another order was made giving 90 days from the expiration of the time given in the first order, held, that the 180 days thus given is not six calendar months from March 1st.
6. SAME--Case-Made--Time for Making--Extension--Irregularity in Order--Waiver. An order extending the time to make a case-made, but giving no time to suggest amendments or for notice of the settlement of the case is irregular, but not void, and such irregularity is waived if the defendant in error, within six months from the final order, waives the suggestion of amendments and consents to the settlement of the case-made by the judge.
7. SAME--Record--Right to Withdraw for Correction. Where the case-made, as sent to this court, does not show that the clerk attested and affixed the seal of the court to the signature of the judge to the case-made, but the plaintiff in error files an affidavit that the clerk did actually attest the case-made and put his seal thereto, and asking to withdraw the record for correction, held, that permission will be given to withdraw the record, with direction to the district court to find the true facts and certify his findings to this court.
W. H. Kornegay, for plaintiff in error.
James S. Davenport, for defendants in error.
¶1 We will proceed to consider the grounds of the motion in their order. That there is no judgment set out in the case-made: That it is necessary that a copy of the final judgment appealed from should be set out in the case-made is well settled. In Gardenhire v. Burdick, 7 Okla. 212, 54 P. 483, it is said:
¶2 By reason of the omission, the appeal was dismissed. And the same rule was followed in Sproat v. Durland, 7 Okla. 230, 54 P. 458; Ford v. McIntosh, 22 Okla. 423, 98 P. 341; Meadors v. Johnson, 27 Okla. 543, 117 P. 198; In re Cochran's Estate, 48 Okla. 672, 149 P. 1089. The case-made in the case at bar does not contain a copy of the journal entry, but does contain the following:
¶3 We do not think this entry complies with the rule announced in the above cases. Rev. Laws 1910, sec. 5143, provides:
"All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action."
¶4 An entry, whether on the journal or the minutes, in the form above set out, does not comply with the statute, for it does not specify clearly the relief granted. In Randall v. Wadsworth, 130 Ala. 633, 31 So. 555, a question very nearly identical with that under consideration was presented. In that case it is said:
"It has been repeatedly decided by this court that a mere recital in the record to the effect that 'demurrer was overruled,' or 'sustained,' is nothing more than a memorandum, wholly wanting in the essential elements of a judgment, and therefore insufficient to support an assignment of error."
¶5 However, it appears from the record with sufficient certainty that a journal entry was signed, and under the provisions of Rev. Laws 1910, sec. 5243, the plaintiff in error should be allowed, if he elects so to do, to withdraw the record and supply the journal entry. The next ground of the motion is that the court made no order allowing the appeal. In this state no such order is necessary. Appeals are given by statute, and in proper cases they are matters of right. The next ground of the motion is that the court made the order extending the time to make and serve a case-made, without application on the part of the plaintiff in error. This is not sustained by the record, for the order recites:
"Now on this 26th day of May, 1913, it appearing to the court for good cause shown that the time should be extended," etc.
¶6 It is not necessary that the record set out the application for an extension of time, for when the court finds that good cause has been shown for the extension, it necessarily follows that the cause was shown by plaintiff in error. It is not necessary that the adverse party have notice of the application to extend the time, and the finding of the trial judge that good cause has been shown is a finding of fact, not subject to review by this court. Pappe v. American Fire Ins. Co., 8 Okla. 97, 56 P. 860; St. Louis Commission Co. v. Calloway, 5 Okla. 393, 395, 47 P. 1088. The next ground of the motion is that the order extending the time is void: (a) Because the court had no application before it, asking that time be granted. This has been disposed of. (b) The order is void because it fails to provide the time to suggest amendments. The order was certainly irregular in this respect, and had the defendants stood on their rights this appeal would have been lost. It is decided in Cummings v. Tate, 47 Okla. 54, 147 P. 304, that the time allowed for the suggestion of amendments to a case-made commences to run from the expiration of the period of extension, and not from the date of the service, but it is held in the same case that this may be waived. In the case at bar, the motion for a new trial was overruled on March 1, 1913, and 90 days given to make and serve case. On May 26th, 90 days additional time was given, after the time previously granted, and while this order contained no provision for time to suggest amendments, or for the settling of the case, the defendants in error have waived any error in this respect; for on May 27, 1913 (and it is not material whether the true date was May or June, 1913), the defendants in error stipulated that this was a correct case-made, waived all rights to suggest amendments, and agreed that the judge might settle the same without further notice. This brings this case directly within the decision in First Bank of Maysville v. Alexander, 47 Okla. 459, 149 P. 152. In that case an order was made extending the time for making and serving the case-made, which expired within six months, but the time to suggest amendments carried it beyond six months from the time of overruling the motion for a new trial; but as a fact, as in the case at bar, the case-made was signed, settled, and docketed in this court within six months. The court says:
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...question to this court for determination and the appeal will be dismissed." Meadors v. Johnson, 27 Okla. 543 117 P. 198; Courtney v. Moore, 51 Okla. 628, 151 P. 1178; Schuck v. Moore, 48 Okla. 533, 150 P. 461; In re Garland, 52 Okla. 585, 153 P. 153; Negin v. Picher Lumber Co., 77 Okla. 285......