Kinnon v. Cote Piano Mfg. Co.
| Decision Date | 16 October 1923 |
| Docket Number | Case Number: 14272 |
| Citation | 1923 OK 789,93 Okla. 22,219 P. 307 |
| Parties | KINNON v. COTE PIANO MFG. CO. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error-- Invalidity of Case-Made--Time for Service.
The record as a case-made is a nullity when served upon defendant in error after expiration of time given for preparing and serving case-made.
2. Same--Attestation by Clerk.
he record as a case-made is a nullity if the signature of the trial judge to the certificate settling the case-made is not attested by the signature and official seal of the court clerk.
3. Same--Review on Transcript--Grant of New Trial.
A certified transcript is not sufficient to give the Supreme Court jurisdiction to consider alleged error of the trial court in sustaining a motion for new trial, and when this is the only question presented, the appeal will be dismissed.
W. C. Austin, for plaintiff in error.
T. M. Robinson, for defendant in error.
¶1 On the 10th day of December, 1917, the defendant in error brought suit in the county court of Jackson county, Okla., against the plaintiff in error upon certain notes, copies of which were attached to the petition. On the same day the plaintiff in error filed a demurrer to the petition, which was overruled by the court on the 19th day of January, 1918. On the 14th day of November, 1919, the defend- ant in error filed an amended petition, and on the 21st day of January, 1921, plaintiff in error filed answer to amended petition. The cause was tried to a jury on the 21st day of January, 1921, and resulted in a verdict in favor of plaintiff in error. On same day the defendant in error filed motion for new trial, which was sustained by the court on the 8th day of November, 1922. The plaintiff in error excepted and gave notice of appeal. An extension of 90 days from the 8th day of November, 1922, was given by the court to prepare and serve case-made. The case-made was prepared and served on the 21st day of February, 1923, which was 15 days too late to comply with the order. The trial judge signed the certificate settling the case-made on the 17th day of March, 1923. There is a county court seal to the left of this signature of the county judge, but there is no signature of the court clerk attesting the signature of the judge. There is a certificate of the court clerk that the record is a true and correct transcript of the court record. The case-made is a nullity for two reasons, which are apparent upon the face of the record: First, the case-made was served upon, the attorney for defendant in error after the time had expired for preparing and serving same; second, the signature of the trial judge certifying and settling case-made is not attested by the court clerk. Foulds v. Hubbard, 36 Okla. 146, 128 P. 108; Brown Beane Co. et al. v. Rucker et al., 36 Okla. 696, 136 P. 1075; Southern Surety Co. v. Smith, 74 Okla. 313, 184 P. 905; Harmon v. McCormack, 42 Okla. 63, 135 P. 1052.
¶2 There are no questions we can consider in this record as a case-made, and without the questions presented by the plaintiff in error can be presented by transcript the appeal would have to be dismissed. The...
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