Pappe v. American Fire Ins. Co.
| Decision Date | 11 February 1899 |
| Citation | 56 P. 860,8 Okla. 97,1899 OK 35 |
| Parties | PAPPE v. AMERICAN FIRE INS. CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A trial court or judge has the right to extend the time for making and serving a case-made, on application of the party appealing, for good cause shown, without any notice to the adverse party; and the finding by the court or judge that good cause has been shown is a finding of fact, which will not be reviewed on appeal.
2. Evidence will not be reviewed on appeal, unless the case-made or bill of exceptions contains all of the evidence pertaining to the subject about which it is alleged that error has been committed; and when the case-made contains a statement that all of the evidence introduced upon the trial is contained therein, but the record itself shows upon its face that it does not, and that material written instruments were omitted therefrom, the record is the best evidence, and will prevail over such statement.
Appeal from district court, Kingfisher county; before Justice John L. McAtee.
Action by Richard Pappe against the American Fire Insurance Company. Judgment for defendant. Plaintiff appeals. Affirmed.
James A. Morris, for appellant.
Boynton & Smith and Leake, Henry & Reaves, for appellee.
1. Judgment was rendered in favor of the defendant in error (defendant below) on April 9, 1897; and the court gave plaintiff 120 days in which to make and serve a case-made for the supreme court. This time expired August 7, 1897, but on August 3, 1897, the plaintiff obtained an order of the trial judge extending the time for serving a case-made 60 days additional to the time theretofore given; and on October 2 1897, the trial judge again extended the time 60 days additional to the time given in the two previous orders. The case-made was served on the defendant in error on November 26, 1897, which was within the time embraced in the orders of the judge, but the defendant in error contends that, because the two orders extending the time to make and serve a case-made were signed without any notice to it, the same are void, and therefore the case-made was served out of time that an order extending time to make and serve a case-made cannot be made by the trial judge, except upon notice to the adverse party; and that the opposite party should be given an opportunity to resist such extension, which was not done in this case. Section 4445, St. Okl. 1893, provides: "The court or judge may, upon good cause shown, extend the time for making a case, and the time within which the case may be served," etc. Time to make and serve a case-made can only be extended by the court or judge upon good cause shown and not otherwise; but the court or judge before whom the case was tried must alone determine as to when good cause is shown, and the finding of the court or judge in relation thereto is a finding of fact, which is not reviewable by the appellate court. Nor is it necessary that the adverse party have notice of the application for extension, or that he be present when the showing is made or extension granted. This rule is well supported by the authorities. Baker v Hall, 29 Kan. 617; Scurry v. Coleman, 14 S.C. 166; Irvine v. Myers, 6 Minn. 560 (Gil. 394); Clark v. Ford (Kan. App.) 51 P. 938.
2. After the plaintiff had introduced all of his evidence and rested, the defendant demurred to the evidence, which demurrer was by the court sustained, and judgment entered for defendant; and the plaintiff appeals to this court, assigning error as follows: "(1) Said court erred in sustaining the demurrer of defendant in error to the evidence of plaintiff in error; (2) said court erred in overruling the motion of plaintiff in error for a new trial; and (3) said court erred in excluding evidence offered by plaintiff in error." The above...
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