Eveland v. Campbell
| Decision Date | 31 January 1928 |
| Docket Number | Case Number: 18874 |
| Citation | 264 P. 910,1928 OK 67,130 Okla. 37 |
| Parties | EVELAND v. CAMPBELL. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Appeal by Case-Made--Necessity for Filing Original Filed in Court Below.
Proceedings in error filed in this court wherein it is sought to review judgment of the lower court, prosecuted by case-made and not by a transcript of the record, can only be brought by filing with the petition in error the original case-made filed in the court below.
2. Same--Lack of Authentication to Case-Made--Withdrawal for Correction not Permissible After Expiration of Time for Appeal.
Where the case-made is not certified and signed by the trial court and contains no certificate of the clerk certifying to the same as a transcript, the Supreme Court, after the expiration of the time allowed for filing petition in error, is without jurisdiction to permit a withdrawal of the same for the purpose of having the same duly authenticated or to permit the filing of a duly authenticated case-made.
Error from District Court, Creek County; Fred A. Speakman, Judge.
Action between Charles Eveland and Oscar E. Campbell. From the judgment, the former appeals. Dismissed.
E. R. Powers, for plaintiff in error.
Hughes & Ellinghausen, for defendant in error.
¶1 Judgment was rendered in this cause in the trial court on the 28th day of January, 1927. Motion for new trial was filed and on the 6th day of June, 1927, by the court overruled. Notice of appeal was given in open court and time given in which to make and serve case-made. Case-made was duly served and presented to the trial court, who on the 21st day of October, 1927, settled and signed the same and the signature of the trial judge thereto attested by the clerk of the trial court, the seal of the court affixed and the case-made as signed and settled by the trial judge was filed with the papers in the case on the 22nd day of October, 1927. Incorporated within the case-made is a certificate of the court clerk certifying to the same as a transcript of the record proper.
¶2 On October 31, 1927, the plaintiff in error filed in this court his petition in error to which was attached a purported carbon copy of the case-made filed with the papers in the case in the office of the clerk of the trial court except that such carbon copy did not bear the signature of the trial judge to the certificate settling the case-made or the signature of the clerk certifying to the same as a transcript, nor was such carbon copy filed in the office of the clerk of the trial court. On December 8, 1927, the plaintiff in error presented to the clerk of this court the original case-made as filed in the office of the clerk of the trial court to be substituted for the carbon copy attached to the petition in error and filed herein on October 31, 1927, which said original was thereafter received by the clerk of this court and filed on January 19, 1928.
¶3 Section 783, C. O. S. 1921, provides that in all actions hereinafter instituted by petition in error in the Supreme or other appellate courts, the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the record of said court. This court in construing the language of this section in the case of Creek Realty Co. v. City of Muskogee, 49 Okla. 413, 153 P. 180, said, and laid down the following rule in the first paragraph of the syllabus thereof:
"A proceeding in error filed in this court, wherein it is sought to review a judgment of the lower court rendered since the adoption of Revised Laws 1910, on May 16, 1913,...
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