Patterson v. Foreman , 38 Okla. 420 ( 1913 )

This case presents error from the district court of Pottawatomie county. A motion has been lodged in this court, by counsel for defendant in error, seeking to secure a dismissal of the same for the reason, among others, that no notice of the time and place of the signing and settlement of the case-made was given or waived, and there was no appearance of the opposite party either in person or by counsel at the time of the settlement of the same.

It appears from the record that the case was served on counsel for defendant in error on the 21st day of February, 1911, but it is not made to appear, either by the case-made or by any extraneous showing, that the essential prerequisites relied on by movant took place, nor that any amendments to the case-made were suggested. The case-made was signed and settled by the trial judge on the 6th day of March, 1911. The question presented is no longer an open one in this court, having been settled by a number of cases, among which may be noted Ft.Smith Western Ry. Co. v. State Nat. Bank of Shawnee,25 Okla. 128, 105 P. 647, and Harrison et al. v. Penney, 28 Okla. 523,114 P. 734; the rule being that where, in a proceeding in error brought to this court on a case-made it does not appear, from the record or otherwise, that the defendant in error was present, either personally or by counsel, at the settlement, nor that notice of the time thereof was served or waived, nor that any amendments were suggested, allowed, or disallowed, the same will be dismissed on motion of the defendant in error.

It therefore follows that the case must be dismissed.

TURNER, C. J., and HAYES and WILLIAMS, JJ., concur; KANE, J., absent.