Perfection Ref. Co. v. Woolworth

1919 OK 334, 185 P. 328, 76 Okla. 297, 1919 Okla. LEXIS 193

• Court: Supreme Court of Oklahoma
• Decided: November 18, 1919
• Docket: 10858
• Status: Published

Opinion

OWEN, C. J.

The case-made was served on July 18th, and written notice given defendant in error that it would be presented on July 30th to the trial judge to be signed and settled. This notice failed to state whether the case-made would be presented in Logan or Payne county, the two counties composing the judicial district. The case-made was not "presented on July 30th, but was presented, signed and settled on August 23d. The record does not contain any notice or waiver of the presentation on August 23rd, nor does it appear defendant in error was present, either in person or by attorney, at the time the case-made was signed and settled.

It must affirmativly appear that notice of the place ánd time of signing and settling a case-made was served on the opposing party or his counsel, or that such notice was waived, and where the record fails to show such notice or waiver, and it does not appear that the defendant in error was present, either in person or by counsel, when the case-made was signed and settled, the proceeding will be dismissed on motion of defendant in error. Guymon Elec. L. & P. Co. v. Spears, 73 Oklahoma, 175 Pac. 347: Grayson v. Perry- man, 25 Okla. 339, 106 Pac. 954; First Natl. Bank of Collinsville v. Daniels, 26 Okla. 383, 108 Pac. 748; Cooper v. Chapman, 26 Okla. 600, 110 Pac. 722.

The motion to dismiss the appeal will be sustained and the appeal dismissed.

PITCHFORD, McNEILL, HIGGINS, and BAILEY, JJ., concur.