Brinsley v. Mahaffey

TURNER, J.

On September 14, 1910, attorneys for defendant in error filed a motion to dismiss this proceeding in error. One of the grounds set forth in the motion is:

“That the case-made in said cause was not presented to the trial judge to be settled and signed upon the date designated in the notice served upon defendant in error, nor was the same presented, signed, and settled at the place or in the county designated in said notice.”

On this point the record discloses that on June 13, the sheriff of Tillman county, on the day it came into his hands, served on the attorneys for defendant in error this notice (omitting caption) :

“To William Mahaffey, or his Attorney o.f Record, W. H. Dial: — •

“You will please take notice, that the defendant, Ben Brins-ley, in the above entitled and numbered case, will present case-made as made out in this case, a copy of which was served on you on the 12th day of June, 1909, and will offer the same to the Honorable J. T. Johnson, judge of the district court of Tillman county, Oklahoma, at his chambers in the court house in the city of Frederick, Tillman county, and state of Oklahoma, for settlement, allowance, and signature on the 14th day of June, 1909.

“FIudson & Mounts,

“Attorneys for Defendant.”

As the certificate of the trial judge shows the case-made to have been settled and signed by him in the city of Lawton, county of Comanche, on July 14, 1909, said motion is sustained and this proceeding dismissed, for the reason that said notice, in legal effect, was no notice of the time and place of the signing and settling of said case-made.

All the Justices concur.