GORDON v. ALLEN

GORDON v. ALLEN
1915 OK 1056
153 P. 1176
54 Okla. 543
Case Number: 6740
Decided: 12/14/1915
Supreme Court of Oklahoma

GORDON et ux.
v.
ALLEN.

Syllabus

¶0 APPEAL AND ERROR--Case-Made-- Validity. Where the defendant in error had no notice of the time and place of signing and settling the case-made, and did not waive same, was not present or represented when the case-made was signed and settled, and had offered no suggestion of amendments, held such case-made is a nullity.

Error from County Court, Grady County; N. M. Williams, Judge.

Action by J. T. Allen against M. V. Gordon and wife. Judgment for plaintiff, and defendants bring error. Dismissed.

J. W. Bartholomew and Maurice Smith, for plaintiffs in error
Riddle & Hammerly, for defendant in error

BRETT, C.

¶1 This cause comes up on motion of defendant in error to dismiss appeal. The record contains no notice of the time and place of signing and settling of case-made, and no waiver of the same. It does not appear that the defendant in error was present or represented by counsel at the time case-made was signed and settled, and no amendments were suggested by him. It is well settled in this jurisdiction that the record must show either notice of the time and place of the signing and settling of a case-made, or a waiver of the same, otherwise the case-made is held to be a nullity. Harrison v. Penny, 28 Okla. 523, 114 P. 734; Ft. Smith & Western Ry. Co. v. State National Bank of Shawnee, 25 Okla. 128, 105 P. 647; Thompson v. Fulton, 29 Okla. 700, 119 P. 244; Wood v. Jones, 32 Okla. 640, 122 P. 678; Walcher v. Burford, 47 Okla. 98, 147 P. 774; Martindale & Deichman v. Shaha, 51 Okla. 670, 151 P. 1019.

¶2 We therefore recommend that the appeal be dismissed.

¶3 By the Court: It is so ordered.