Courtney v. Moore, Case Number: 5361

• Court: Supreme Court of Oklahoma
• Writing for the Court: DEVEREUX, C.
• Citation: 1915 OK 709,151 P. 1178,51 Okla. 628
• Docket Number: Case Number: 5361
• Decision Date: 28 September 1915
• Parties: COURTNEY v. MOORE et al.

1915 OK 709
151 P. 1178
51 Okla. 628

COURTNEY
v.
MOORE et al.

Case Number: 5361

Supreme Court of Oklahoma

Decided: September 28, 1915

Syllabus

¶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.

DEVEREUX, C.

¶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:

"This purports to be an appeal from a judgment of the district court of Payne county. The record consists of a case-made regularly served, signed, authenticated, and filed. The case-made contains no copy of the judgment or final order of the court in said cause."

¶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:

"Motion for a new trial heard and overruled. Judgment and decree for defendants on verdict as per journal entry. Plaintiff excepts."

¶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

...