Mobley v. Chicago, R. I. & P. Ry. Co. ( 1914 )

Opinion by

GAEBRAITH, C.

The plaintiff in error, a sister of John G. Mobley, deceased, commenced this action in the trial court to recover damages for his wrongful death, charged to have been caused by the negligence of the defendant in error, its servants and employees. At the close of the evidence on behalf of the plaintiff a demurrer was interposed thereto and sustained. It is sought by the appeal to have that order reviewed. The recitals of the case-made relative to this order, are as follows:

“That thereafter on the 10th day of June, 1911, it being one of the regular judicial days of the regular June, 1911, term Of the district court of Pottawatomie county, the plaintiff rests, and closes its case, whereupon the defendant files its demurrer to the evidence of the plaintiff, which demurrer is in words and figures as follows, to wit: 'Mr. Low: Comes now the defendant and demurs to the evidence of the plaintiff herein, at the conclusion of the same, for the reason that it, together with all reasonable inferences therefrom, is insufficient to prove a cause of action under the allegations of the petition, herein; and for the further reason that the evidence offered by plaintiff does not show a state of facts which will sustain a cause of action in favor of the next of kin dependent upon the said John Guy Mobley.’ Thereupon Mr. Smith asks leave of court before the demurrer was considered by the court to file the following amendment, which by leave of court was granted, and the defendant thereupon withdrew his said demurrer. The said amendment to the plaintiff’s petition is as follows: ‘Comes now the plaintiff at this time and asks leave of the court to amend the amended petition of plaintiff by adding, after the amendment, the following words: “That at this time the deceased, Guy Mobley, was injured, from which injuries he died, he was engaged in the employment of and riding on a switch engine of the defendant, to which switch 'engine he was attached as switchman at said time, and working in aid of an interstate passenger train of the defendant, which said switchman at said times was engaged in interstate commerce between the states of Oklahoma and Arkansas, to wit, it was moving over a switch which connected the tracks of the Chicago, Rock Island & Pacific Railway Company, and the tracks of the Atchison, Topeka & Santa Fe Railway Company, for the purpose of meeting and assisting over said connecting track passenger train No. -, then moving and in transit from the state of Arkansas into the state of Oklahoma, and over said track and through the city of Shawnee, where was located said track in said state; and defendant was engaged in the operation of said train, and at said time, of intrastate and interstate commerce.” ’ The court thereupon permitted and gave leave for the plaintiff to file the said amendment without objection on the part of the defendant. Thereupon defendant renewed its demurrer to the evidence of the plaintiff for the reason that the facts proven and all reasonable inferences drawn therefrom are insufficient to sustain a verdict in favor of the plaintiff, and for the further reason that the plaintiff is not a dependent within the meaning of the statute. Which demurrer was by the court thereupon sustained, to which ruling of the court the plaintiff excepts. The defendant thereupon asks judgment on the demurrer of the defendant to the plaintiff’s evidence. Thereupon the c„urt granted judgment upon the demurrer of the defendant, to which ruling the plaintiff excepts. Which order is — ”

A motion is presented in this court to dismiss the appeal: First, because the purported case-made does not show that judgment was rendered or entered. Second, because the purported case-made contains no final order of the court overruling the motion for a new trial. Third, because the purported case-made was not filed within the extensions allowed by the court, as shown by the records of the clerk’s office. Fourth, because the plaintiff in error has exhausted her advance cost deposit in 'this court, and has neglected and refused to make additional cost deposit or put up satisfactory cost bond with the clerk.

At least three of the grounds of this motion seem to be well taken. There is no journal entry of judgment in the record of the court’s ruling on the demurrer to the evidence, nor is there a journal entry of the judgment in favor of the defendant and against the plaintiff for costs, as would naturally follow the court’s order in sustaining the demurrer to the evidence. This seems to be a fatal defect in the record, as would appear from the following authorities-: Gardenhire v. Burdick, 7 Okla. 212, 54 Pac. 483; Sproat v. Durland, 7 Okla. 230, 54 Pac. 458; Commissioners v. Moon, 8 Okla. 205, 57 Pac. 161; Denny v. Wright & O’Rourke, 13 Okla. 256, 74 Pac. 104; High v. United States, 14 Okla. 399, 78 Pac. 100; Brown v. Territory of Oklahoma, 15 Okla. 362, 82 Pac. 647; Ford v. McIntosh, 22 Okla. 423, 98 Pac. 341; Meadors v. Johnson, 27 Okla. 543, 117 Pac. 198; Kansas City, M. & O. Ry. Co. v. Fain. 34 Okla. 164, 124 Pac. 70; Olentine v. Powell, 23 Okla. 363, 100 Pac. 556.

In the last case above cited, Chief Justice Hayes, speaking for the court, says:

• “An examination of the case-made discloses that it contains no copy of any final judgment or order of the court below upon the issues before it, and from the recitals in the record it ap^ pears that no final order or judgment has been made. At most, the case-made fails to show that any judgment or final order was rendered by the trial court upon the issues before it. The matters quoted from the case-made above would constitute a finding of the fact upon the issues before the court, but do not constitute any order thereupon. Where the case-made to be reviewed by this court fails to show that a judgment or final order was rendered by the trial court, or fails to contain a copy of such judgment or final order, such case-made presents nothing to this court for review, and cannot be' considered.”

Again, the third ground of the motion, that the case-made was not served and filed within the extension allowed by the court, as shown by the records, likewise seems to be well taken. The order on the demurrer was made on the 6th day of November, 1911, and on that day the time for making and serving case-made was extended for 90 days. This order would permit the case-made to be served at any time'prior to February 5, 1912. There appears in the case-made an order under date of January 19, 1912, extending the time for serving the case-made 30 days additional to the 90 days above mentioned; but the record fails to show that this order was filed with the clerk of the trial court or ever became a part of the record in the case. The case-made was not served upon the defendant in error until March 4, 1912.

In the case of Fife v. Cornelius, 35 Okla. 402, 124 Pac. 957, the second paragraph of the syllabus reads as follows:

“A purported order of the trial judge extending the time in which to make and serve a case-made is without force where the case-made fails to show affirmatively that such order was made and is entered of record.”

In the instant case the record fails to show that this order of January 19, 1912, purporting to extend the time for serving the case-made, was ever filed or entered of record in the trial court, and it is therefore without legal force or effect. This third ground is sufficient alone to justify .the court in granting the motion to dismiss the appeal. The record was filed in this court on May 4, 1912, and it is now too late to supply the defects in the record above referred to.

The motion to dismiss is well taken and should be sustained. We recommend that the appeal in this case should be dismissed.