Hamilton v. Havercamp

124 P. 73, 33 Okla. 569, 1912 Okla. LEXIS 748

Opinions

.WILLIAMS, J.

On March 31, 1910, and in due time, a motion for new trial was filed by the plaintiff (plaintiff in error). On the 2d day of April, 1910, said motion having been overruled, plaintiff was allowed 90 days in which to make and serve a case-made, the defendant 30 days thereafter to suggest amendments; the case-made to be presented for settlement by either party upon giving the other ten days’, notice. On the 13th day of June, 1910, the time in which to make and serve a case-made was extended to August 1, 1910. On July 21, 1910, ’the time for making and serving case-made was further extended to October 21, 1910. On September 30, 1910, the case-made was duly served upon counsel for the opposite side. On September 30, 1910, the attorneys for all parties agreed, in writing, that the case-made as served was a full, true, correct, and complete case-made.

The term of office of the Plon. William L. Barnum, who was the regular judge of the district court of said judicial district, and who tried the cause, having expired on January 9, 1911, said case-made, on January 20,1911, was signed and settled by the Irion. Wade S. Stanfield, his successor in office. On the 30th day of March, 1911, said case-made was also presented to Judge Bar-nüm, who also settled same.

It appears that neither by notice nor otherwise was. the time fixed for the presentation of said case-made for settle-nient, prior to the expiration of Judge Barnum’s term of office. Under the holding in Richardson et vir v. Beidleman et al., ante, 126 Pac. 818, the trial judge neither being dead nor otherwise incapacitated from settling the same, his successor was not authorized to settle same.

In the same case, it was also held that the retiring judge was not authorized to settle such case-made, except when, at the time of his retirement from office, the time allowed for making and serving the case-made, or the time fixed for the presentation and settling of the same, had not expired.

Under the authority of said case, the appeal must be dismissed.

TURNER, C. J., and HAYES and KANE, JJ., concur; DUNN, J., dissenting.