Grand Lodge of Ancient Order of United Workmen v. Furman

• Decision Date: 18 February 1898
• Citation: 52 P. 932,6 Okla. 649,1898 OK 12
• Parties: GRAND LODGE OF ANCIENT ORDER OF UNITED WORKMEN v. FURMAN.
• Court: Oklahoma Supreme Court

52 P. 932

6 Okla. 649, 1898 OK 12

GRAND LODGE OF ANCIENT ORDER OF UNITED WORKMEN v. FURMAN.

Supreme Court of Oklahoma

February 18, 1898

Syllabus by the Court.

1. Neither this court, nor the trial court or judge, has the power to amend a case-made, after it has been settled and signed by said judge, and attested by the clerk of his court.

2. The evidence constitutes no part of the record of a case; hence testimony omitted from a case-made cannot be presented to this court on a suggestion of a diminution of the record followed by a proceeding in the nature of certiorari to bring up all omitted matters of record in said case.

3. This court will not reverse a judgment, upon the ground that it is not supported by sufficient evidence, when the record filed herein does not purport to contain all of the evidence introduced at the trial of the cause.

4. "Error is never presumed; it must always be shown; and if it is not affirmatively shown, it will be presumed that no error has been committed." Bartlett v. Feeney, 11 Kan. 594.

Error from district court, Payne county; before Justice Frank Dale.

This action was brought by Oleva Furman against the Grand Lodge of the Ancient Order of United Workmen for $2,000, with interest thereon at the rate of 7 percent. per annum from September 20, 1896, alleged to be due her as the beneficiary in an insurance policy taken out in defendant corporation by Fred M. Furman, her husband, who died on the 22d day of August, 1896. A jury was waived by both parties, and the case tried to the court, which resulted in a judgment for plaintiff, on the 26th day of April, 1897, for the sum of $2,088. Defendant brings error. Affirmed.

Cotteral & Hornor, Williams & Hale, and R. A. Lowry, for plaintiff in error.

King & Hutto and J. S. Workman, for defendant in error.

KEATON J.

The principal question to be determined in this case is one of practice, to wit, whether or not a case-made for this court can be amended, by incorporating therein additional testimony, after it has been settled, signed, and certified by the judge of the district court and attested by the clerk of said court. The material facts presenting this question are as follows: The original case-made, prepared by Williams & Hale, attorneys for defendant below, was served upon counsel for plaintiff below on August 24, 1897, and was settled and signed by the trial judge, and attested by the clerk of the district court, on the 16th day of September, 1897. Said case-made, as settled and signed, did not contain the constitution and by-laws of defendant, although it appears, both from the answer of defendant and the transcript of testimony contained in said case-made, as originally prepared, that said constitution and by-laws were in fact made an exhibit to defendant's said answer, and introduced in evidence in its behalf at the trial. As appears from the indorsements on the back thereof, said original case-made was filed in the office of the clerk of the district court on the same date that it was settled, signed, and attested, to wit, September 16, 1897, and on October 25, 1897, was filed in this court. On November 6, 1897, Messrs. Cotteral & Hornor, who, it appears, were retained as associate counsel for plaintiff in error after the cause reached this court, upon proper application made thereto, obtained leave of said court to withdraw, temporarily, from the files of this court, said case-made, for the purpose of procuring the trial judge to make certain corrections therein and amendments thereto. On November 29, 1897, said counsel for plaintiff in error served notice upon counsel for defendant in error that they would, on the 6th day of December, 1897, apply to the Honorable Frank Dale, who, as district judge, tried said case, for the purpose of having him amend the case-made by attaching thereto and incorporating therein said constitution and by-laws of plaintiff in error, and on said last-mentioned date the said district judge did attempt to amend said case-made by attaching thereto and incorporating therein said constitution and by-laws, after which, and on the same date, the said district judge attached another certificate to said case-made, showing the fact of such amendment made thereto, which certificate was attested by the clerk of said court, and the case-made as amended was refiled by said clerk on December 17, 1897, but there is no evidence of its ever having been refiled in this court. However, on December 27, 1897, counsel for defendant in error filed in this court their motion, supported by affidavits, to strike out the amendments, or attempted amendments, to said case-made, and requesting that we do not consider them in deciding the cause.

The question thus presented is elaborately, and, we are pleased to say, exceptionally, well briefed by counsel for both parties, thus materially aiding us in arriving at a correct conclusion thereon. It is earnestly insisted by counsel for plaintiff in error that the district judge, upon proper application made to him, and notice to the adverse party, had the power to amend the case-made by adding thereto and incorporating therein the evidence originally omitted therefrom by inadvertence, and thus make it speak the truth, and that the motion filed on behalf of defendant in error to strike out said amendment should be overruled. The importance to plaintiff in error of having said constitution and by-laws (which are sought to be made a part of the case-made by amendment) considered by us in determining the case upon its merits is at once apparent upon an examination of the record. In fact, they constitute the principal, if not the only, defense relied upon by counsel for plaintiff in error in their original brief filed herein. In support of their contention that the trial judge had the power to amend the case-made in the manner attempted herein, said counsel cite 3 Enc. Pl. & Prac. 903, where it is said that, "where the case as settled is defective, the party aggrieved thereby may move before the trial judge for a resettlement," and also Id. 905, where it is said: "A case must be complete when signed, and the trial judge has no power thereafter to amend or alter it ex parte. An application to amend must be made on notice to the adverse party." Counsel also rely upon the authorities cited in the notes as supporting the foregoing statements of the text, which are principally New York cases as to the former and Kansas cases as to the latter. See Id. note, p. 903, and notes 2, 3, p. 905. Many of the New York cases so cited are decisions of the inferior courts of that state, and are not accessible to us; but, from an examination of the two decisions, by the highest court of said state, in the case of Rubber Co. v. Rothery, 112 N.Y. 592, 20 N.E. 546, and 119 N.Y. 633, 23 N.E. 529, we are convinced that the rule in New York is correctly stated in the text. It is also evident that the New York statutes upon the question of settling and signing cases-made are materially different from ours. Under the former, it appears that the party desiring to appeal prepares a case-made, serves it on the adverse party or his attorney to enable him to suggest amendments thereto, and thereafter presents same to the trial court or judge to be settled and signed, all substantially in the same manner and form as required under our practice. Then, if either party feels aggrieved at any of the rulings of said court or judge in allowing or rejecting amendments to said case-made, or in any manner adding anything thereto or striking anything therefrom, at or prior to the time the same is settled and signed, he has the right to move for a resettlement thereof, and to make a showing in support of such motion, and an order denying said motion "is appealable where a substantial right of the applicant is affected thereby." Rubber Co. v. Rothery, supra. In other words, under the New York practice, the rulings of a trial court or judge, in determining what shall and what shall not be contained in a case-made, are not final; but such court or judge may be applied to by a proper motion to review and correct any or all of said rulings, and after this motion has been disposed of, if either party still feels aggrieved, the controverted question may be appealed to the higher courts for final decision. In the meantime, it appears, the entire record for appeal in the original cause remains on file in the trial court.

The second statement hereinbefore quoted from said text is not in our opinion, supported by the Kansas cases cited thereunder. Especially is this so if it is intended, as is clearly indicated by the language used, that the converse of the rule there laid down is also correct; that is, that the trial judge, after having once settled and signed a case-made, and his signature has been attested by the clerk, has the power to amend or alter same, when the application therefor is "made on notice to the adverse party." The first case cited as supporting this rule is that of Transportation Co. v. Palmer, 19 Kan. 471, wherein it is held simply that "a case-made cannot be supplemented and perfected in this court by attaching thereto copies of the pleadings and other proceedings of the district court, neither referred to nor incorporated in the case-made." The second case so cited is that of Crosby v. Wilson, 53 Kan. 565. 36 P. 985, and the only propositions relating to the case-made, decided therein, are that, "in order to preserve in a case-made all the evidence introduced upon the trial, a statement to that effect should be inserted in the case itself, and not in the certificate of the trial judge," and that "this court cannot add to a case-made after it has been settled, signed, and attested." The next case so cited is Lewis v....