Keenan v. Chastain

• Decision Date: 29 May 1917
• Docket Number: Case Number: 6155
• Citation: 64 Okla. 16,1917 OK 266,164 P. 1145
• Parties: KEENAN v. CHASTAIN et al.
• Court: Oklahoma Supreme Court

1917 OK 266

164 P. 1145

64 Okla. 16

KEENAN v. CHASTAIN et al.

Case Number: 6155

Supreme Court of Oklahoma

Decided: May 29, 1917

Syllabus

¶0 1. Motions--Orders Made Out of Court--Entry. Section 5317, Rev. Laws 1910, requiring orders made out of court to be forthwith entered on the journal of the court by the clerk, is directory, and compliance with said requirement that such orders be so entered is not essential to the validity of such orders, nor is it necessary that the case-made show affirmatively the recording thereof.

2. Appeal and Error--Fundamental Question of Jurisdiction. The fundamental question of jurisdiction, first, of the appellate court, and then of the court from which the record comes, presents itself on every writ of error or appeal, and must be answered by the court, whether propounded by counsel or not.

3. Appeal and Error--Rehearing--Overruling. The Supreme Court may grant a rehearing of an overruled motion to dismiss an appeal.

4. Appeal and Error--Case-Made--Notice. The defendant has a right to notice of the time and place of the settlement of a case-made, and where no such notice is given or waived, and there is no appearance by the defendant in error, either in person or by attorney, the case-made is fatally defective.

5. Same--Waiver of Notice--Amendment. The suggestion of amendments to a case-made where the record shows that one of them was disallowed by the trial court, without showing its materiality, does not constitute a waiver of notice of the time and place of settlement.

Bruce L. Keenan, for plaintiff in error.

Asbery Burkhead, for defendants in error.

KANE, J.

¶1 This cause is now before the court on second petition for rehearing and motion to dismiss appeal. The facts out of which this proceeding arose are briefly as follows: Originally this was a suit to foreclose a mortgage upon certain land in Cherokee county. The mortgage was foreclosed, and the property sold to satisfy the judgment rendered, Robert Chastain, who was a minor, by his guardian, filed his objections to the confirmation of the sale. Upon hearing said objections the court sustained the same and set aside the sale. It is from the order refusing to confirm the sale that this proceeding in error is prosecuted. The appeal was dismissed sua sponte in an opinion by Mr. Commissioner Davis, and upon petition for rehearing being filed Commissioner Davis wrote a second opinion, adhering to the former opinion dismissing the appeal. A motion to dismiss the appeal was filed and overruled by the court prior to the opinions by Commissioner Davis. In the original opinion dismissing the appeal the first two grounds for dismissal, as stated in the syllabus, are in effect: (1) For the reason that the journal entry of judgment did not bear the filing mark of the clerk of the court, or other indication that it had ever become a part of the record in the case; (2) that a recital in the case-made that certain orders had been made extending the time to make and serve case-made must show affirmatively that they have been entered of record. These two points have been expressly overruled by this court subsequently in St. L. & S. F. R. Co. v. Taliaferro, 58 Okla. 585, 160 P. 610. In an opinion by Mr. Justice Hardy the court said:

"Section 5317 (Rev. Laws 1910), requiring orders made out of court to be forthwith entered on the journal of the court by the clerk, is directory, and compliance with said requirement that such orders be so entered is not essential to the validity of such orders, nor is it necessary that the case-made show affirmatively the recording thereof."

¶2 Thus it will be seen that the first two grounds upon which the opinion dismissing this appeal is based are now overruled, and said holding should be set aside. However, the appeal must be dismissed upon another ground. It is conceded that no notice of the time and place to settle and sign case-made was served upon the defendant, and that he was not present when the same was signed and settled by the trial judge. It is settled law in this jurisdiction that the defendant has a right to notice of the time and place of the settlement of a case-made, and where no such notice is given or waived, and there is no appearance by the defendant in error, either in person or by attorney, the case-made is fatally defective. Southwestern Surety Co. v. Going, 48 Okla. 460, 150 P. 488; Moore v. Howard Merc. Co., 40 Okla. 491, 139 P. 524; Ft. S. & W. R. Co. v. State Nat. Bank, 25 Okla. 128, 105 P. 647; First Nat. Bank v. Daniels, 26 Okla. 383, 108 P. 748; Lister v. Williams, 28 Okla. 302, 114 P. 255; Harrison v. Penny, 28 Okla. 523, 114 P. 734; Foral v. Bogle, 44 Okla. 805, 146 P. 706. To meet this...