Ranney-Davis Mercantile Co. v. Morris
| Decision Date | 11 January 1923 |
| Docket Number | 13255. |
| Citation | 211 P. 1044,88 Okla. 107,1923 OK 20 |
| Parties | RANNEY-DAVIS MERCANTILE CO. v. MORRIS ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where due notice is given of the time and place that a case-made will be presented to the trial judge for settlement and signature, and the party upon whom said notice is served appears at the time and place designated in the notice, and suggests no amendments and makes no objection to the signing and settlement of the case-made on said date, although the time fixed therein for presenting said case-made to the judge for signing and settlement may be at a time earlier than it could be presented and signed, held, the voluntary appearances of the party at the settlement without objection operates as a waiver regarding the time when said case-made may be settled.
Where due notice of the time and place of settling and signing a case-made for the Supreme Court has been given to the adverse party, such party cannot ignore such notice, or treat it as a nullity, although the time fixed in such notice for settling and signing such case-made be earlier than the case could properly be settled and signed. And where the judge of the court, in the absence of the adverse party, and without any objection from him or from any other person, settles and signs the case upon such a notice, and nothing further is done concerning the same, the Supreme Court will, in the absence of other irregularities, treat the case-made as valid.
Where no notice is given of the time and place of settlement of case, but all the parties appear for the purpose of signing and settling the case-made and no amendments are suggested and no objection made to the signing and settling of the case-made upon said date, although it may be at an earlier time than it could be settled and signed, held, the voluntary appearance of the parties at the settlement of the case-made without objection operates as a waiver regarding the time when said case-made may be settled.
Whether the time in which to suggest amendments to the case-made begins to run from the time of the expiration of the time allowed within which to serve case-made, and not from the time of actual service, depends upon the wording of the order of the court fixing the time to suggest amendments.
Where no notice of the time of settlement of the case-made is given or waived and there is no appearance by the opposite party either in person or by counsel, the case-made is a nullity and this court acquires no jurisdiction to decide the question therein.
The former opinions of this court announcing a contrary rule and in conflict with the rules of law above announced are hereby overruled.
Appeal from District Court, Garfield County; J. C. Robberts, Judge.
Action by Tom Morris and others against the Ranney-Davis Mercantile Company. From a judgment for plaintiff, defendant appeals. On motion to dismiss appeal. Motion overruled.
Winfield Scott, of Enid, and A. M. Dean, of Arkansas City, Kan., for plaintiff in error.
Curran & Kruse, of Enid, for defendants in error.
This is an appeal from the judgment of the district court of Garfield county in favor of defendant in error and against the plaintiff in error. On the 11th day of March, 1922, the court made an order extending the time 30 days from the time theretofore granted to prepare and serve case-made, 10 days thereafter given for the purpose of suggesting amendments case-made to be signed and settled upon 5 days' notice. It is conceded the time for serving case-made would expire on April 16, 1922. The case-made was served upon the 27th day of March and at the same time a notice was given that the case-made would be presented for settlement and allowance on the 15th day of April, 1922. On the 15th day of April, 1922, the defendants in error appeared by their attorneys, and plaintiff in error appeared by its attorneys; no amendments were suggested nor objection made to signing and settling the case-made, and the same was settled and signed by the court. Defendant in error now moves to dismiss the appeal for the reason this court was without jurisdiction because the defendant in error had until the 26th day of April, 1922, in which to suggest amendments, and the court had no jurisdiction to sign the case-made prior to said time.
The motion is not well taken. This court, in the case of Stieber v. Stieber, 82 Okl. 205, 200 P. 141, stated as follows:
"Where due notice is given of the time and place that a case-made will be presented to the trial judge for settlement and signature, and the party upon whom said notice is served appears at the time and place designated in the notice, and suggests no amendments and makes no objection to the signing and settlement of the case-made on said date, although the time fixed therein for presenting said case-made to the judge for signing and settlement may be at a time earlier than it could be presented and signed, held, the voluntary appearances of the party at the settlement without objection operates as a waiver regarding the time when said case-made may be settled."
The facts relating to signing and settlement of the case-made are the same as the facts in the case above cited, and that decision controls this case.
In view of the fact there are numerous motions pending to dismiss appeals where the facts are similar, and there is an apparent conflict in the decisions of this court, involving the question whether a case-made is a nullity, if signed prior to the time it is authorized to be signed, when the opposite party was regularly served with notice and failed to appear or appeared and made no objection to signing and settling of the case-made. We have deemed it advisable to write an opinion attempting to settle these questions.
This court, in the case of Southwestern Surety Ins. Co. v. Dietrich, 172 P. 51, stated as follows:
"We are of the opinion that the true rule is, and we so declare it to be, that where a case-made is settled and signed by the trial judge prior to the time it might properly be settled and signed upon notice duly given of the time and place, and no appearance is made or amendments suggested, or objections offered by the party upon whom the notice was served, that the case-made is not a nullity, but at most the action of the trial court is merely an irregularity which could be corrected upon application, by the party interested, to the trial court."
In support of this contention, the court cited the case of Gross v. Funk, 20 Kan. 655, which held as follows:
The Supreme Court of Kansas, in the case of Russell v. Anthony, 21 Kan. 450, 30 Am. Rep. 436, stated as follows:
This court, in the case of Watson v. Shaffner, 77 Okl. 1, 184 P. 1016, attempted to distinguish the facts in that case from the rule laid down in the case of Southwestern Surety Ins. Co. v. Dietrich, supra, and stated as follows:
When the statement of facts are read in both cases, there is no distinction. In Watson v. Shaffner this court cited the case of M., K. & T. Ry. v. City of Ft. Scott, 15 Kan. 435 and stated as follows:
"This case was decided in 1875 and was a construction of the statutes and laws of Kansas at the time we adopted the Kansas Code of Procedure, and become the law of Oklahoma."
The opinion in the case of M., K. & T. Ry. Co. v. City of Ft Scott did not pass upon the question of whether a case-made signed and settled prior to the time it might have been signed according to the order previously made was a nullity, or only irregular and voidable. In that case the second and third syllabus, being the only ones...
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