Ft. Smith & W. R. Co. v. State Nat. Bank of Shawnee

• Decision Date: 09 November 1909
• Docket Number: Case Number: 1010
• Parties: FT. SMITH & W. R. CO. v. STATE NAT. BANK OF SHAWNEE.
• Court: Oklahoma Supreme Court

1909 OK 273

105 P. 647

25 Okla. 128

FT. SMITH & W. R. CO. v. STATE NAT. BANK OF SHAWNEE.

Case Number: 1010

Supreme Court of Oklahoma

Decided: November 9, 1909

Syllabus

¶0 APPEAL AND ERROR--Dismissal--Defective Record. 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, nor that notice of the time thereof was served or waived, nor the date of the signing and settlement, nor what amendments suggested were allowed or disallowed, will be dismissed on motion of the defendant in error.

Error from Pottawatomie County Court; E. D. Reasor, Judge.

Action between the Ft. Smith & Western Railroad Company and the State National Bank of Shawnee. From the judgment the Railroad Company brings error. Dismissed.

Charles E. Warner and Harry P. Warner, for plaintiff in error.

Stanard, Wahl & Ennis, for defendant in error.

DUNN, J.

¶1 August 11, 1909, plaintiff in error filed its petition in error, with case-made attached, in the office of the clerk of this court. October 13, 1909, counsel for defendant in error filed a motion to dismiss the same, enumerating five different grounds. As we are constrained to sustain the same for and on account of the third proposition presented, we shall not advert to the others.

¶2 The purported case-made is deficient in a great many particulars other than those mentioned herein, some of which in our judgment might, under the liberal rule provided under an act of the legislative assembly of the territory of Oklahoma (Sess. Laws 1905, p. 322, c. 28), providing for the correction of court records on appeal, be corrected; but, to our minds, the objection is fatal that the case-made does not affirmatively show that there was any service made or notice given of the time and place when and where the case-made would be offered the judge for signing and settling, or any waiver thereof, nor any showing that it in fact took place, nor any appearance by defendant in error, as contemplated and provided for in section 544, art. 22, c. 66, par. 4742, Wilson's Rev. & Ann. St. Okla. 1903. The general rule in this class of cases is stated in section 233 of Prof. Burdick's work on New Trials and Appeals as follows:

"It is a well-established rule that, if no notice of the time of settlement is given or waived, and there is no appearance of the opposite party, either in person or by counsel, the case so settled is a nullity."

¶3 The Supreme Court of the territory of Oklahoma or of the state do not seem to have ever passed squarely upon this proposition, but the text quoted is supported by a uniform line of Kansas authorities, among which we note the following: Weeks v. Medler, 18 Kan. 425; M., K. & T. Ry. Co. v. Roach et al., 18 Kan. 592; Safford et al. v. Turner, 53 Kan. 728, 37 P. 121; Chicago & Atchison Bridge Co. v. Fowler, 55 Kan. 17, 39 P. 727; Christie v. Carter, 56 Kan. 166, 42 P. 708.

¶4 In the case at bar it appears that counsel for plaintiff in error served the case-made on counsel for defendant in error for the purpose of allowing him to suggest amendments, and, although challenged, for the purpose of this proceeding it will be assumed that this service was made within time. Thereafter counsel for defendant in error returned the case-made to counsel for plaintiff in error, suggesting eight different amendments. These amendments with the case-made, as appears from the same, were received by counsel for plaintiff in error on the 17th day of October, 1908. On the 20th day of October, 1908, from a copy of a letter which counsel for plaintiff in error asserts was written by himself to counsel for defendant in error, it is stated:

"I have no objections to offer to the amendments which you suggest, and I therefore did not think it necessary for me to come to Shawnee and go over the same with you. However, I have no objections to your assisting Judge Reasor in making the corrections if you desire to do so."

¶5 Counsel for plaintiff in error likewise wrote a letter to the judge by whom the case was tried, in which he stated that he agreed to the suggested amendments, suggesting that the stenographer comply therewith, and requesting the judge to sign the certificate which he found annexed to the record. The paper calling attention to the suggested amendments was attached to the case-made, but the amendments were never made or entered, and there is nothing to show that they were considered by the judge in settling the case and signing the certificate to the case-made, and it does not appear when it was signed, except that it was October, 1908, and no other notice of any kind or character is claimed to have been given counsel for defendant in error as to the time and place of the signing and settlement of the case-made, nor is it shown to have been waived. To our minds the foregoing is wholly insufficient to vest this court with jurisdiction to review the errors complained of. The jurisdiction of a trial judge...