Grayson v. Damme

• Decision Date: 07 March 1916
• Docket Number: 4497.
• Citation: 155 P. 1159,59 Okla. 213,1916 OK 284
• Parties: GRAYSON v. DAMME ET AL.
• Court: Oklahoma Supreme Court

155 P. 1159

59 Okla. 213, 1916 OK 284

GRAYSON v. DAMME ET AL.

No. 4497.

Supreme Court of Oklahoma

March 7, 1916

Syllabus by the Court.

This court is without authority to amend, or to regard as amended a case-made.

Upon timely motion to correct a case-made filed in this court this court will not sustain a motion of the defendant in error to dismiss such appeal, without giving plaintiff in error an opportunity to correct such record.

Commissioners' Opinion, Division No. 1. Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Action between Jane Grayson and Fritz H. Damme and others. From the judgment, Jane Grayson brings error, and defendants in error move to dismiss. Ordered that case-made may be withdrawn for correction.

William Neff and William B. Moore, both of Muskogee, for plaintiff in error.

Geo Ramsey, Edgar A. de Meules, Malcolm E. Rosser, and Sol H Kauffman, all of Muskogee, for defendant in error Fritz H. Damme.

COLLIER C.

This cause comes on to be heard upon a motion by defendants in error, filed December 22d, to dismiss this appeal upon the ground that the case-made fails to show:

(1) "That the motion for a new trial was filed within 3 days after the rendition of the verdict."

(2) "That the motion for new trial was filed at the same term the verdict was rendered."

On November 18, 1915, plaintiff in error filed a motion asking that the case-made be regarded by this court as amended, or the case-made be withdrawn for correction, so as to show the motion for new trial was timely made. This court "is not authorized to supply omissions or make corrections in the record of the trial court." Bettis v. Cargile et al., 23 Okl. 301, 100 P. 436. Hence that part of said motion which asks that the court regard the amendment as made should be denied.

As the case-made now states the motion to dismiss is well taken, but the plaintiff in error having made timely motion to correct the record, so as to show that the motion for new trial was timely made, this court will not dismiss the appeal until opportunity be given plaintiff in error to correct the said case-made, and the motion of plaintiff in error, so far as the same seeks to withdraw the case-made for the purpose of correcting same, should be granted. Section 5243, Rev. L. 1910.

Plaintiff in error will be allowed to withdraw from this court the case-made filed in this cause, to have said case-made corrected by ...