Marshall v. Marshall

• Decision Date: 14 December 1965
• Docket Number: No. 40306,40306
• Citation: 408 P.2d 794
• Parties: Henry G. MARSHALL, Plaintiff in Error, v. Ida B. MARSHALL, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 794

408 P.2d 794

1965 OK 193

Henry G. MARSHALL, Plaintiff in Error, v. Ida B. MARSHALL, Defendant in Error.

No. 40306.

Supreme Court of Oklahoma.

Dec. 14, 1965.

Syllabus by the Court

1. When the record whereon review is sought is a nullity either as a certified transcript of the record proper (judgment roll) or as a case made, and such fatally defective instrument remains on file in the Supreme Court after the expiration of the maximum period of time prescribed by 12 O.S.Supp., 1963, § 972, subdiv. (a) and (b), for the commencement of an appeal by both the transcript and the case made methods, the cause is not subject to dismissal but will be treated and may be prosecuted as a proceeding in error upon the original record if it should appear that plaintiff in error did give notice of intention to appeal, as required by 12 O.S.1961, § 954, within 10 days from final order and the petition in error was filed in the Supreme Court within 90 days from such final order as provided in 12 O.S.1961, § 956.2.

2. Where a case is remanded to the trial court with directions to enter judgment for one of the parties and the judgment is entered in substantial conformity with the directions of the Supreme Court the action of the trial court thereon will be affirmed.

Appeal from the District Court of Oklahoma County; A. P. Van Meter, Trial Judge.

Plaintiff in error brings this appeal from judgment entered against him with reference to division of property in a divorce suit. Affirmed.

Charles Hill Johns, Oklahoma City, for plaintiff in error.

Jack L. Spivey, Paul Pugh, Oklahoma City, for defendant in error.

WILLIAMS, Justice.

This is the second appeal growing out of a divorce case.

This cause was commenced here on October 16, 1962, as an appeal by case made from the trial court's order of July 27, 1962, sustaining a motion to strike as well as a special demurrer, both directed at the amended cross-petition and the amendment thereto filed by plaintiff in error, defendant below, after mandate was spread of record following our decision in Marshall v. Marshall, Okl., 364 P.2d 891. As disclosed by the record whereon review is sought, the notice served on October 10, 1962, apprised defendant in error that the case made would be presented for its settlement by the trial judge on October 15, 1962, at 1:30 P.M. According to the trial judge's certificate the settlement of case made was actually effected on October 16, 1962, Acting sua sponte the court directed by order of March 23, 1965, that plaintiff in error show cause why this appeal should not be dismissed because the case made whereon it is sought to be prosecuted is a nullity under the rule announced in Carlton v. State Farm Mutual Automobile Insurance Co., Okl., 309 P.2d 286, 290; and Scott v. Hansen, Okl., 279 P.2d 654. In the case first cited the court held: If after due notice has been served of the time and place the case made will be presented to the trial judge for settlement, no settlement is effected at the time and place designated, the notice so given becomes functus officii and before such case made may be validly settled another notice setting forth the time and place of settlement must be given to the opposite party. In the latter decision the court held that a case made is a nullity, and an appeal prosecuted thereon must be dismissed, if its settlement was effected without due advance notice to the opposite party, without appearance of such party at the time of settlement and without any waiver of proper notice.

The response of plaintiff in error disputes neither the applicability nor the force of the two decisions invoked by the order of March 23, 1965. Rather, the court is urged to consider this cause as an appeal by certified transcript of the record instead of by case made. Plaintiff in error points out that this proceeding in error was filed within the maximum period of three months prescribed by 12 O.S.1961, § 972--the statute which was in effect when final order herein involved was rendered in the trial court, and that the errors sought to be assigned are apparent on the face of the judgment roll. The argument advanced by plaintiff in error concludes that the questions sought to be presented are reviewable on appeal by transcript and that this cause should be treated as such an appeal.

Our examination of the record impels us to a different conclusion. The instant proceeding in error may not be regarded as an appeal by certified transcript of the record because the record whereon it is sought to be prosecuted neither contains, nor is it certified as a full, true and complete transcript of the entire judgment roll. The certificate of authentication by the court clerk merely recites that 'the above and foregoing contains a full, true, correct and complete transcript and copy of all the pertinent portions of the record * * *'. The law stands settled by an unbroken line of decisions that where an instrument attached to the petition in error contains, and is authenticated as a copy of less than the entire judgment roll (record proper), it is wholly ineffective as a certified transcript of the record and presents nothing for review; after the expiration of the maximum period prescribed by law for the commencement of an appeal by transcript such fatally defective instrument may no longer be corrected by supplying the omitted parts of the record proper and by procuring its recertification as a copy of the complete judgment roll. Schabel v. Wright, 179 Okl. 73, 64 P.2d 855; Render et al. v. Dodson, 179 Okl. 352, 66 P.2d 14; Adams Royalty Co. v. Faulkner, 176 Okl. 423, 55 P.2d 1033, 1036; Short v. Hale, Okl., 400 P.2d 816.

The instrument attached to the petition in error is a nullity both as a transcript and as a case made. The fatal defects which taint the record may no longer be corrected. This is because the maximum time prescribed by the statute in force for the commencement of an appeal both by transcript and by case made when judgment herein was rendered (12 O.S.1961, § 972) has now expired. Short v. Hale, supra; Shepherd v. Herndon, Okl., 398 P.2d 511.

The Court has noticed the provisions of Senate Bill 198 of the Thirtieth Oklahoma Legislature (now 12 O.S.Supp.1965, §§ 988, 989) respecting the waiver of certain defects by joining in the settlement of case made. Those sections were not in effect when briefs were filed herein and are not relied upon by the parties. For other reasons, as appear hereinafter, it is not necessary to deal therewith.

The record in this Court reflects that plaintiff in error did give timely notice of his intention to appeal within 10 days from final order, as required by 12 O.S.1961, § 945, and the petition in error was filed herein within the 90-day period prescribed by 12 O.S.1961, § 956.2 for the commencement of an appeal upon the original record. This Court stands firmly committed to the view that but two steps are required to confer jurisdiction upon it of an appeal upon the original record: (1) notice of appeal must be given within the 10-day period and in the manner specified in 12 O.S.1961, § 954; and, (2) petition in error must be filed in this Court within 90 days after final order as provided in 12 O.S.1961, § 956.2. (Not involved herein is...