First Nat. Bank v. Daniels

• Decision Date: 10 May 1910
• Citation: 108 P. 748,26 Okla. 383,1910 OK 131
• Parties: FIRST NAT. BANK OF COLLINSVILLE v. DANIELS.
• Court: Oklahoma Supreme Court

108 P. 748

26 Okla. 383, 1910 OK 131

FIRST NAT. BANK OF COLLINSVILLE v. DANIELS.

Supreme Court of Oklahoma

May 10, 1910

Syllabus by the Court.

A proceeding in error brought to this court on a case-made where it does not appear from the record or otherwise that the defendant was present either personally or by counsel at the settlement, or that notice of the time thereof was served or waived, or what amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.

It is the uniform practice in the Supreme Court to take up all motions filed in causes on the docket as soon after the filing of the same as the opposing party shall have reasonable opportunity to make answer thereto, but there is no rule requiring parties to give notice of the hearing of the court on a motion to dismiss.

An order that a further extension of 30 days be granted to defendant to make and serve a case-made on appeal to the Supreme Court, and that plaintiff be given until a specified date to suggest amendments and 5 days in which to settle the case, contemplated that plaintiff should have 5 days' notice of the settlement of the case.

Error from Rogers County Court; Archibald Bonds, Judge.

Action by S.W. Daniels against the First National Bank of Collinsville. Judgment for plaintiff, and defendant brings error. Dismissed.

William M. Hall and James S. Davenport, for plaintiff in error.

J. R League, for defendant in error.

HAYES J.

On the 8th day of March, 1910, the court rendered an opinion in this case sustaining a motion of defendant in error to dismiss upon the ground that no notice was served by plaintiff in error upon defendant in error of the time and place the case-made would be presented to the trial judge for settlement. A petition for rehearing was thereafter filed and the court, after examining the briefs filed in support of the petition, has reached the conclusion reached in its former opinion and adheres to same. But, since language was used in the former opinion that might be misleading to the bar, in the statement of the general rule applicable to the questions raised by this motion, the former opinion is withdrawn, and this opinion upon the petition for rehearing shall constitute also the opinion of the court on the merits of the motion to dismiss.

Plaintiff in error complains in his petition for rehearing that the motion to dismiss was considered and ruled upon by the court without notice to him of any hearing thereon. There is no statute or rule of court requiring that parties to a proceeding in this court shall be given notice of the hearing of the court upon a motion to dismiss. It has been the uniform practice of the court since its organization to take up and consider all motions filed in causes on the docket as soon after the filing of the same as the opposing party shall have had a reasonable opportunity to make answers thereto. Rule 3 requires 10 days' notice prior to the commencement of each term of the court shall be given by the clerk of the court to all the attorneys of the day on which each cause shall be heard; but this rule applies to the submission of causes on the merits and has no application to motions. No motion shall be argued unless by direction of the court. Rule 4. All motions shall be in writing, and, when a motion is filed with the clerk, it must show service on the opposite party as to the time it will be filed, and he shall have 10 days thereafter in which to answer the same. Rule 5. A consideration of all motions as soon after they have been filed as will permit the opposing party to file briefs in opposition thereto is necessary to the dispatch of the business of the court and often results in saving litigants useless expense and avoids delay in the administration of justice.

The case-made in this proceeding was signed and settled by the trial judge in the absence of defendant in error and without notice to him of the time and place the same would be signed and settled. In Ft. Smith & Western Ry. Co. v. State Nat Bank of Shawnee, 105 P. 647, in the body of the opinion the general rule applicable to this class of cases, quoted language of section 233 of Burdick's...