Martin v. Milnor

• Decision Date: 12 October 1915
• Docket Number: Case Number: 5733
• Citation: 152 P. 388,52 Okla. 232,1915 OK 754
• Parties: MARTIN v. MILNOR et al.
• Court: Oklahoma Supreme Court

1915 OK 754

152 P. 388

52 Okla. 232

MARTIN v. MILNOR et al.

Case Number: 5733

Supreme Court of Oklahoma

Decided: October 12, 1915

Syllabus

¶0 1. APPEAL AND ERROR--Case-Made-- Service--Dismissal. In a proceeding in error by case-made the record must affirmatively show that the case-made was served within the statutory time or time allowed by the court or judge, and where it fails to so show the case- made is a nullity.

2. SAME--Case-Made as Transcript. Where a case- made is a nullity, because not served within time, the same cannot be considered as a transcript, where it is not certified by the clerk of the trial court.

Error from District Court, Oklahoma County; George W. Clark, Judge.

Action by M. M. Milnor against H. C. Finley and others. Judgment for plaintiff, and defendant H. H. Martin brings error. Dismissed.

C. H. Shubert, for plaintiff in error.

Ed S. Vaught, for defendant in error Milnor.

DUDLEY, C.

¶1 This is an action brought in the district court of Oklahoma county by the defendant in error Milnor, plaintiff below, against the plaintiff in error, Martin, and the defendants in error H. C. Finley and Anna Finley, his wife, Agnes Finley, Dora Patterson, and others, defendants below, upon two promissory notes executed by the defendants Finley and wife, and payable to the plaintiff, one for $ 15,000, and the other for $ 1,800, and to foreclose two mortgages securing said notes, signed by the defendants Finley and wife and H. H. Martin, covering certain real estate in Oklahoma City. Martin owned the fee to said real estate, and Finley owned a 99-year lease thereon. The defendant Dora Patterson guaranteed in writing the payment of the $ 1,800 note. On January 2, 1913, the case was tried, resulting in a judgment in favor of the plaintiff against Finley and wife and Dora Patterson for the amount due upon said notes and foreclosing the mortgages upon said premises. There was no appeal from this judgment. At the expiration of six months from the rendition of said judgment and at a subsequent term of said court, and on July 2, 1913, Martin filed an unverified motion in said court in said cause seeking to have the original judgment modified in certain respects. This motion was overruled, and exceptions saved, and Martin brings the case here for review. Milnor, Finley and wife, Agnes Finley, and Dora Patterson are made defendants in error here, and they waived the issuance and service of summons in error.

¶2 The plaintiff, Milnor, contends that this court has no jurisdiction to review the errors complained of, for the reason, among others, that the appeal is not properly perfected. This contention is correct. There are two methods of presenting a case on appeal to this court--one by case-made; and the other by transcript. Section 5240, Rev. Laws 1910; Wade v. Mitchell, 14 Okla. 168, 79 P. 95; Fortune v. Parks et al., 29 Okla. 698, 119 P. 134; Green et al. v. Incorporated Town of Yeager, 23 Okla. 128, 99 P. 906. The method attempted to be pursued in the instant case is by case-made. The record, however, does not affirmatively show that the purported case-made was ever served upon any of the defendants in error. Milnor, through...