Knox v. Krause

1929 OK 411, 282 P. 289, 140 Okla. 7, 1929 Okla. LEXIS 304

Opinion

PER CURIAM.

This is an appeal from the judgment of the district court of Kay county rendered on the 18th day of January, 1929, in an action wherein plaintiff in error was defendant. The issues of fact were submitted to the jury with Claude Duval, judge of the district court of Kay county, presiding judge at the trial. As such presiding judge he rendered judgment in the cause, and made the order overruling the motion for new trial. The case-made attached to th.e petition in error was settled and signed hy W. 0. Rice, a judge of the district court of the same district in which the cause was tried. ,

The defendant in error now moves this court to dismiss the appeal upon the grounds the case-made is a nullity and brings nothing before this court for review for the reason it was not settled and signed by the judge who tried the cause.

No showing is made in the record attached to the petition in error and filed in this court as to the inability of the trial judge to settle and sign the case-made. The case-made must be settled and signed by the judge who tried the case, and where the case is tried by one judge and the case-made is settled and signed by another, and no showing is made as to the inability of the trial judge to do so, the case-made is a nullity. Town of Guymon v. Triplett, 71 Okla. 298, 177 Pac. 670; Davis v. Lambard-Hart Realty & Investment Co., 88 Okla. 301, 213 Pac. 78; Brown v. Marks, 45 Okla. 711, 146 Pac. 707; Arkansas Fertilizer Co. v. Brattin, 127 Okla. 9, 260 Pac. 43.

The record attached to the petition in error is certified to by the court clerk of the trial court as a transcript, but the assignments of error set forth in the petition in error cannot be reviewed on transcript.

For the reason the case-made is not settled and signed by the judge who tried the cause, such case-made is a nullity and brings nothing before this court for review, and the appeal is dismissed.