Walker v. Buckmaster

Supreme Court of Oklahoma

Walker v. Buckmaster

1923 OK 515, 216 P. 426, 90 Okla. 252, 1923 Okla. LEXIS 1168

CourtSupreme Court of Oklahoma

DecidedJuly 17, 1923

Docket12346

StatusPublished

Cited by5 cases

This text of 1923 OK 515 (Walker v. Buckmaster) 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

Walker v. Buckmaster, 1923 OK 515, 216 P. 426, 90 Okla. 252, 1923 Okla. LEXIS 1168 (Okla. 1923).

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Opinion

KENNAMER, J.

On December 7, 1920, defendant in error, plaintiff below, secured a decree in the district court of Haskell county quieting title to real estate situated therein, and on the same day motion for a new trial in the case was overruled and an extension of 90 days granted defendant, plaintiff in error here, in which, to prepare and serve case-made. Within the time allowed an order was entered by the trial judge granting an additional extension oi 30 days in which to serve case-made, plaintiff to have 10 days after the service of case-made to suggest amendments thereto, same to be settled, signed, and filed upon five days’ notice in writing by either party. The case-made was served on April 5, 1921, the last day of the time allowed, and was settled and signed by the trial judge on April 18, 1921, without notice, written or otherwise, having been served or waived and without defendant in error having suggested amendments to the case-made or appearing in person or by counsel when the same was presented to the trial judge for settlement. Defendant in error filed a motion to dismiss because of the facts herein stated, to which no response has been made.

This court, in the case of Wyant v. Wheeler, 38 Okla. 68, 132 Pac. 137, held:

“Though the case-made is served within the prescribed time, yet if the party is not served with notice of the time and place of its presentation for settlement, unless such an appearance was made as would operate to waive notice, or amendments as suggested by such party were allowed by the trial court, the case-made as settled cannot be considered in this court for any purpose.”

See Ranney-Davis Mercantile Company v. Morris et al., 38 Okla. 107, 211 Pac. 1044.

It is clear from the rule announced in' these authorities that the motion to dismiss the appeal is well taken.

The appeal is accordingly dismissed.

JOHNSON, C. J., and COCHRAN, BRAN-SON, and HARRISON JJ., concur.

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KENNAMER, J.

On December 7, 1920, defendant in error, plaintiff below, secured a decree in the district court of Haskell county quieting title to real estate situated therein, and on the same day motion for a new trial in the case was overruled and an extension of 90 days granted defendant, plaintiff in error here, in which, to prepare and serve case-made. Within the time allowed an order was entered by the trial judge granting an additional extension oi 30 days in which to serve case-made, plaintiff to have 10 days after the service of case-made to suggest amendments thereto, same to be settled, signed, and filed upon five days’ notice in writing by either party. The case-made was served on April 5, 1921, the last day of the time allowed, and was settled and signed by the trial judge on April 18, 1921, without notice, written or otherwise, having been served or waived and without defendant in error having suggested amendments to the case-made or appearing in person or by counsel when the same was presented to the trial judge for settlement. Defendant in error filed a motion to dismiss because of the facts herein stated, to which no response has been made.

This court, in the case of Wyant v. Wheeler, 38 Okla. 68, 132 Pac. 137, held:

“Though the case-made is served within the prescribed time, yet if the party is not served with notice of the time and place of its presentation for settlement, unless such an appearance was made as would operate to waive notice, or amendments as suggested by such party were allowed by the trial court, the case-made as settled cannot be considered in this court for any purpose.”

See Ranney-Davis Mercantile Company v. Morris et al., 38 Okla. 107, 211 Pac. 1044.

It is clear from the rule announced in' these authorities that the motion to dismiss the appeal is well taken.

The appeal is accordingly dismissed.

JOHNSON, C. J., and COCHRAN, BRAN-SON, and HARRISON JJ., concur.

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Bluebook (online)

1923 OK 515, 216 P. 426, 90 Okla. 252, 1923 Okla. LEXIS 1168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-buckmaster-okla-1923.

Opinion

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