Walker v. Buckmaster

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 of 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 P. 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 P. 1044.

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

The appeal is accordingly dismissed.

JOHNSON, C. J., and COCHRAN, BRANSON, and HARRISON JJ., concur.