Pioneer Tel. & Tel. Co. v. Davis

• Decision Date: 10 May 1910
• Docket Number: Case Number: 801
• Citation: 1910 OK 149,109 P. 299,26 Okla. 205
• Court: Oklahoma Supreme Court
• Parties: PIONEER TELEPHONE & TELEGRAPH CO. v. DAVIS.

1910 OK 149

109 P. 299

26 Okla. 205

PIONEER TELEPHONE & TELEGRAPH CO. v. DAVIS.

Case Number: 801

Supreme Court of Oklahoma

Decided: May 10, 1910

Syllabus

¶0 1. APPEAL AND ERROR--Record--Settlement of Case--Necessity of Notice. No reason exists why notice should be served upon attorneys of record to appear at the time of settling of the case other than that the parties may have their suggestions considered and if approved, adopted; but where, as in this case, it is stipulated and agreed between the parties that the case-made contains a full, true, correct, and complete copy and transcript of all the proceedings in said cause, including all pleadings filed and all proceedings had, all the evidence offered and introduced, all the orders and rulings made, and exceptions allowed, and all the records upon which the judgment and journal entry in said cause were made, the same is a full, true, correct, and complete case-made, the defendant in error has no cause for complaint.

2. APPEAL AND ERROR--Record -- Extrinsic Evidence to Show Jurisdiction. Where a case has been brought to the Supreme Court upon a case-made and not upon a transcript, the rulings of the lower court or of the judge thereof complained of and assigned for error must be shown by and embodied in the case-made itself, and they cannot be shown by any other or by extrinsic evidence, but other matters or things to make the case reviewable may generally be shown by extrinsic evidence, or, in other words, by evidence outside of the case-made; and therefore, where it did not appear from the face of the case-made that the case was made and served within the time prescribed by law or by any order of the lower court or the judge thereof, held, that it may be shown by extrinsic evidence in this court that the case was in fact made and served within the proper time.

Error from District Court, Muskogee County; G. A. Brown, Judge.

Action between the Pioneer Telephone & Telegraph Company and J. W. Davis, special administrator of J. L. Davis. From the judgment, the telephone and telegraph company brings error. On motion to dismiss. Overruled.

J. B. Furry and S. H. Harris, for plaintiff in error.

S. R. Taylor, for defendant in error.

KANE, J.

¶1 This cause comes on to be heard upon a motion to dismiss by defendant in error, upon grounds which may be epitomized as follows: (1) The defendant in error was not served with notice of the time and place of presenting the case-made to the trial judge for settling and signing. (2) The case-made was not filed with the clerk of this court within the time allowed by the trial court. (3) Because the case- made was not served on the defendant in error nor his attorney of record, nor was there a copy of the original case-made filed with the clerk of the Supreme Court.

¶2 On page 109 of the case-made we find the following stipulation:

"It is hereby stipulated and agreed by and between the parties hereto that the foregoing case-made contains a full, true, correct, and complete copy and transcript of all the proceedings in said cause, including all pleadings filed and proceedings in said cause, including all pleadings filed and proceedings had, all the evidence offered and introduced, all the orders and rulings made, and exceptions allowed, and all the records upon which the judgment and journal entry in said cause were made, and the same is a full, true, complete, and correct case-made."

¶3 This stipulation precludes the defendant in error from taking advantage of the first ground of dismissal. When he stipulated that the case-made as presented and served upon him was correct, he waived all further right to make amendments, and also the right to notice of the signing and settling of the case-made by the judge. In Symms Grocer Co. et al. v. Burnham et al., 5 Okla. 222, 47 P. 1059, it was held:

"No other reason exists that we are aware of why notice should be served upon attorneys of record to appear at the time of settling of the case other than that the parties may have their suggestions considered, and, if approved, adopted; but where, as in this case, all of the amendments suggested by the attorney for the defendant in error were accepted by the plaintiff in error and incorporated into the case-made, the defendant in error can have no cause for complaint."

¶4 The foregoing case follows Fire Ins. Co. v. Amick, 36 Kan. 99, 12 P. 338, where it was held that:

"The reason that notice is required to be given to the defendant in

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