Branum v. Skirving

Supreme Court of Oklahoma

Branum v. Skirving

1930 OK 511, 293 P. 262, 146 Okla. 73, 1930 Okla. LEXIS 263

CourtSupreme Court of Oklahoma

DecidedNovember 18, 1930

Docket21366

StatusPublished

This text of 1930 OK 511 (Branum v. Skirving) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Branum v. Skirving, 1930 OK 511, 293 P. 262, 146 Okla. 73, 1930 Okla. LEXIS 263 (Okla. 1930).

Pincite

Opinion

PER CURIAM.

This is an appeal from the judgment of the district court of Muskogee county rendered in: an action wherein Ira F. Skirving was plaintiff and Victor E. Branum was defendant. Judgment was for the plaintiff, and defendant appeals.

The motion for new trial was overruled November 23, 1925, and-time given in which to make and serve case-made. It is conceded by the parties to this appeal that the case-made was served within the time allowed by order of the ; court therefor, but the defendant in error now .moves that the appeal be dismissed upon the grounds the case-made is a nullity and brings nothing before the court for review for the reason the case-made was settled and signed in the absence of, and without notice to the defendant in error, and without such notice having been in any manner waived.

The case-made attached to the petition in error does not show any notice was given to the defendant in error of the' time and place of the settlement thereof, nor that such notice was in any manner waived; the plaintiff was not present at the time of the settlement of the case-made.

A case-made settled and signed in the absence of, and without notice to the defendant in error of the time and place of settlement and without a waiver of such a notice is a nullity and brings nothing before this court for review. Liberty Life Ins. Co. v. Green, 133 Okla. 58, 270 Pac. 1111, and cases therein cited. The plaintiff in error nowhere asserts that such notice was given, but urges that because the certificate of the trial court judge recites notice was given, the question presented by the *74 motion to dismiss was adjudicated in tlie trial court. This question is also decided in the ease of Liberty Life Ins. Oo. v. Green, supra, wherein the rule is announced as follows:

“The certificate of the trial judge to a case-made is only prima facie evidence of the facts recited therein, and where the record on its face shows the recital in such certificate to be erroneous, the facts shown by the record will control.”

See, also, Town v. Crawford, 106 Okla. 254, 234 Pac. 208, and cases therein cited.

The record in this ease is not certified as a transcript, and for the reason the case-made is a nullity and brings nothing before this court for review, the appeal is dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

This is an appeal from the judgment of the district court of Muskogee county rendered in: an action wherein Ira F. Skirving was plaintiff and Victor E. Branum was defendant. Judgment was for the plaintiff, and defendant appeals.

The motion for new trial was overruled November 23, 1925, and-time given in which to make and serve case-made. It is conceded by the parties to this appeal that the case-made was served within the time allowed by order of the ; court therefor, but the defendant in error now .moves that the appeal be dismissed upon the grounds the case-made is a nullity and brings nothing before the court for review for the reason the case-made was settled and signed in the absence of, and without notice to the defendant in error, and without such notice having been in any manner waived.

The case-made attached to the petition in error does not show any notice was given to the defendant in error of the' time and place of the settlement thereof, nor that such notice was in any manner waived; the plaintiff was not present at the time of the settlement of the case-made.

A case-made settled and signed in the absence of, and without notice to the defendant in error of the time and place of settlement and without a waiver of such a notice is a nullity and brings nothing before this court for review. Liberty Life Ins. Co. v. Green, 133 Okla. 58, 270 Pac. 1111, and cases therein cited. The plaintiff in error nowhere asserts that such notice was given, but urges that because the certificate of the trial court judge recites notice was given, the question presented by the *74 motion to dismiss was adjudicated in tlie trial court. This question is also decided in the ease of Liberty Life Ins. Oo. v. Green, supra, wherein the rule is announced as follows:

“The certificate of the trial judge to a case-made is only prima facie evidence of the facts recited therein, and where the record on its face shows the recital in such certificate to be erroneous, the facts shown by the record will control.”

See, also, Town v. Crawford, 106 Okla. 254, 234 Pac. 208, and cases therein cited.

The record in this ease is not certified as a transcript, and for the reason the case-made is a nullity and brings nothing before this court for review, the appeal is dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

1930 OK 511, 293 P. 262, 146 Okla. 73, 1930 Okla. LEXIS 263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branum-v-skirving-okla-1930.

Opinion

Related

Cite This Page — Counsel Stack