O'Neil Engineering Co. v. City of Lehigh

• Decision Date: 25 July 1916
• Docket Number: 6454.
• Citation: 159 P. 497,61 Okla. 57
• Parties: O'NEIL ENGINEERING CO. ET AL. v. CITY OF LEHIGH.
• Court: Oklahoma Supreme Court

159 P. 497

61 Okla. 57

O'NEIL ENGINEERING CO. ET AL. v. CITY OF LEHIGH.

No. 6454.

Supreme Court of Oklahoma

July 25, 1916

Syllabus by the Court.

An appeal will not be dismissed by this court, upon motion of defendant in error for fatal defects in the case-made, when there is a motion timely filed herein by plaintiff in error to be permitted to withdraw such case-made for correction supported by certificate of the clerk of the trial court showing that the defects existing in the case-made may be removed by amendment, when it appears from the record that such matters are amendable under section 5243, Rev. Laws 1910.

This court is without authority to amend a case-made, but will upon motion, permit same to be withdrawn for the purpose of proper amendment under supervision of the judge of the trial court.

An order, extending time for service of case-made, made under the provisions of section 5246, Rev. Laws 1910, which is regular on its face and which contains a recital, "And it appearing that notice of this application has been duly given, and it appearing that, on account of accident and misfortune which could not reasonably have been avoided by the above-named defendants, the said defendants have not been able to serve case-made upon the plaintiff within the time heretofore fixed by a previous order allowing time," will not be reviewed on motion to dismiss.

Commissioners' Opinion, Division No. 5. Error from District Court, Atoka County; Robt. M. Rainey, Judge.

Action by the city of Lehigh against the O'Neil Engineering Company and the Southern Surety Company. Judgment for plaintiff and defendants bring error. Motion to dismiss appeal denied, and motion to withdraw case-made for correction granted.

J. G Ralls, of Atoka, and Stanard, Wahl & Ennis, of Shawnee, for plaintiffs in error.

George Trice, of Coalgate, for defendant in error.

CAMPBELL C.

The defendant in error has filed in this court its motion to dismiss the appeal herein, and the plaintiffs in error have filed a motion for permission to withdraw the case-made for correction. The ground upon which a dismissal is urged is that the case-made was not served within time. Under the record as it exists in this court, such contention is true for the reason that the case-made fails to affirmatively show that the orders of the trial court, extending the time for service of case-made, were entered of record in the trial court as required by law; but it is made to appear that such orders were actually entered by the certificate of the clerk of the trial court in support of the motion of plaintiffs in error for permission to withdraw case-made for correction in the particulars above pointed out.

If such orders were actually entered in the trial court, it should so affirmatively appear in the case-made. A showing is made that such orders were entered of record in the trial court and were of record at the time the case-made was served, and it is sought to have the case-made corrected so as to show the true condition of the record of the trial court in relation to such orders. Under the condition of the record in this cause, it would be unjust to dismiss the appeal without giving plaintiffs in error an opportunity to correct the case-made. A record like this one was before this court in the case of Grayson v. Damme et al., 155 P. 1159 (not yet officially reported), and it was held:

"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."

It has been many times held that this court will permit records to be corrected under section 5243, Revised Laws 1910, and this court, being without authority to make even proper corrections, will permit the withdrawal of records from this court for the purpose of permitting them to be corrected in the trial court under the supervision of the judge thereof in proper cases. In fact, it has come to be a frequent practice as a means of preventing dismissals, and such amendments are favored on account of the due...