Rutter v. Dunlap

1945 OK 38, 155 P.2d 529, 195 Okla. 88, 1945 Okla. LEXIS 639

• Court: Supreme Court of Oklahoma
• Decided: January 30, 1945
• Docket: No. 32006.
• Status: Published

Opinion

PER CURIAM.

This is an appeal by petition in error and case-made which was filed in this court October 4, 1944.

The case-made was settled and signed by the trial court on the 4th day of October, 1944. It was served on the 7th day of September, 1944, but the record discloses that there was no service of a notice of settlement of the case-made.

In Pink v. McGuire, 187 Okla. 629, 105 P. 2d 229, we held:

“A case-made settled and signed without notice to the opposing party of the time and place of settling and signing the same, and without the appearance of such party or parties, and without their waiver of such notice, is a nullity and confers no jurisdiction on this court to decide any questions thereunder.”

No waiver of any description has been made by the defendant in error, and under the above holding this court is without jurisdiction to consider the alleged errors presented in the case-made.

It is urged that the certificate of the trial court shows a waiver by the defendant in error. The motion to dismiss is sworn to by an affidavit of the movant, and under such circumstances we have held that the certificate of the trial judge is only prima facie evidence of the facts recited therein with respect to the service of notice of settlement of the case. In addition thereto there is no assertion by the plaintiff in error in the response that notice of settlement was given to the parties in the case at bar.

The appeal is dismissed.

GIBSON, C.J., HURST, V.C.J., and RILEY, OSBORN, BAYLESS, CORN, DAVISON, and ARNOLD, JJ., concur.