Phillips v. Hackler , 49 Okla. 586 ( 1915 )

This cause comes on to be heard upon a motion to dismiss, filed by the defendant in error upon the following ground:

"The judgment rendered herein is a joint judgment in favor of Mary Hackler against three defendants, Sam Dane, Chas. A. Phillips, and Victor C. Phillips. The defendants Chas. A. Phillips and Victor C. Phillips filed motion for new trial, which was overruled and time given in which to serve case-made. No case-made was ever served on the defendant Sam Dane. There is no showing of service on Sam Dane and no waiver by him. This renders the case-made void; and, since this is an appeal by case-made, there is nothing for the court to consider, and hence the same should be dismissed."

This contention seems to be well taken. It is supported byNational Surety Co. v. Oklahoma Presbyterian College,38 Okla. 429, 132 P. 652, cited by the movants, and by many other cases.

The motion to dismiss is sustained.

All the Justices concur.