COLBURN v. SNELL

COLBURN v. SNELL
1930 OK 193
289 P. 304
144 Okla. 114
Case Number: 20675
Decided: 04/29/1930
Supreme Court of Oklahoma

COLBURN et al.
v.
SNELL et al.

Syllabus

¶0 1. Appeal and Error--Trial Judge not Authorized to Settle Case-Made Where Motion for New Trial Pending at Time His Term of Office Expires.
Section 787, C. O. S. 1921, makes it the duty of the judge who tried the cause to settle, sign, and certify a case-made, after his term of office has expired, where all the proceedings necessary to enable this court to review the cause up to and including that state of the case shall have been reached when the time in which to serve case-made begins to run, before he vacates the office, but where a necessary motion for new trial is filed and undisposed of at the expiration of his term of office, the judge who presided at the trial is not authorized to settle the case-made.
2. Same--Nullity of Case-Made When not Settled by Succeeding Judge Who Passed Upon Motion for New Trial.
Where the term of office of the judge who presided at the trial of the cause expires before a pending necessary motion for new trial is passed upon and his successor in office disposes of the motion, it is the duty of the successor in office to settle, sign, and certify the case-made, and unless it be so settled, signed, and certified, the case-made is a nullity and brings nothing before this court for review.

Error from District Court, Tulsa County; R. D. Hudson, Judge.

Action by R. E. Snell against N. O. Colburn and others. Judgment for plaintiff, and defendant Colburn and another appeal. Dismissed.

Ellis A. Robinson and Quincy Jones, for plaintiffs in error.
Humphrey & Campbell, for defendants in error.

PER CURIAM.

¶1 This cause was tried before R. D. Hudson, judge of the district court of Tulsa county, and judgment rendered therein on the 3rd day of January, 1929. The motion for new trial was duly filed on the 4th day of January, 1929, and thereafter and before the motion for new trial was passed upon the said R. D. Hudson resigned and vacated the office of district judge of said county, and Saul A. Yager was appointed successor in office to Judge Hudson and this cause was submitted to him for action upon the motion for new trial. After a review of the pleadings, a transcript of the evidence and of the judgment, Judge Yager, on the 4th day of March, 1929, denied the motion for new trial, and the cause was appealed to this court. The case-made attached to the petition in error and filed in this cause was settled and signed by Judge Hudson, who presided at the trial of the cause and rendered judgment therein.

¶2 The cause is now before the court on a motion of the defendants in error to dismiss the appeal on the grounds the case-made is a nullity for the reason Judge Hudson, who settled and signed the same, was without authority to settle and sign the case-made.

¶3 Section 787, C. O. S. 1921, provides that the case-made shall be settled and signed by the judge who tried the cause, "and in all causes heretofore, or hereafter tried, when the term of office of the trial judge shall have expired or may hereafter expire before the time fixed for the making, settling, and signing of a case, it shall be his duty to certify, sign, and settle the case in all respect as if his term had not expired." At the time Judge Hudson vacated his office the motion for new trial had not been passed upon, nor had any time been fixed to make, serve, and settle the case-made. In Ingersoll v. Yates, 21 Kan. 90, the Supreme Court of the state of Kansas, in construing the Kansas law from which section 787, supra, is taken, said:

"The provision of the law * * * refers to and includes causes only in which the time for making the case has been fixed by the outgoing judge, and does not include those in which such time has been fixed by his successor in office. 'Fixed,' in this section, is in the past tense, and refers to a time prior to the expiration of the term of the trial judge, and refers the time of fixing to a time antecedent to the expiration of the term of the trial judge. * * * The plain meaning of this section includes cases only where the trial judge has fixed the time for making the case and his term of office has expired before the time so fixed by him."

See Burnett v. Davis, 27 Okla. 124, 111 P. 191; St. Louis & San Francisco Ry. Co. v. Corser (Kan.) 3 P. 569; Barnes v. Lynch, 9 Okla. 11, 59 P. 995.

¶4 By this section of the statute it is contemplated that all proceedings sought to be reviewed and all the proceedings necessary to enable this court to review the cause up to and including that state of the proceedings shall have been reached when the time allowed by law or valid order of the court in which to make the case begins to run and then the term of office of the trial judge expires, the judge who tried the cause shall settle the case-made. This section then has no application to the condition of the record before us, for the reason that at the time Judge Hudson vacated the office the motion for new trial had not been passed upon, nor had the time in which to serve case-made begun to run.

¶5 This cause was tried upon the issues presented by the pleadings filed in the trial court and it was necessary to present the alleged errors of the trial court by a motion for new trial and have the motion passed upon in order to have the cause reviewed by this court ( Duncan v. Duncan, 129 Okla. 125, 263 P. 1083; Buchanan v. Fant, 110 Okla. 206, 238 P. 962; Malleck v. Thomas, 109 Okla. 95, 234 P. 1107; Eastwood v. Clinkscales, 82 Okla. 52, 197 P. 455); and it is necessary to enable this court to review alleged errors of the trial court occurring during the trial that the case-made include the order of the trial court overruling the motion for new trial. Section 784, C. O. S. 1921. Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067; City of Tulsa v. Kay, 124 Okla. 243, 255 P. 684; Brigham v. Davis, 126 Okla. 90, 258 P. 740. It cannot successfully be contended that Judge Hudson could legally certify to any decision or order of the district court made after he ceased to be judge thereof, and therefore that portion of the record presented by the case-made showing the action of Judge Yager in overruling the motion for new trial and extending the time for making the case-made is a nullity. Ingersoll v. Yates, supra. And since this court will not consider the errors alleged to have occurred during the trial without the order overruling the motion for new trial being presented, we must therefore consider the entire record presented by case-made is a nullity.

¶6 The plaintiffs in error urge that Judge Yager was not authorized in any event to settle the case-made, and that if the settlement of the case-made by Judge Hudson is insufficient to authenticate the case-made, then there was no legal way under the statute of this state for the case-made to be settled and the plaintiffs in error are entitled as a matter of right to a new trial, and cite in support thereof the cases of Brown v. Marks, 45 Okla. 711, 146 P. 707; Baber v. Overton, 80 Okla. 128, 194 P. 893; Mitchell v. Bruce, 85 Okla. 53, 204 P. 281; Bahm-Biery Oil Corporation v. Erwin, 87 Okla. 295, 210 P. 1021; In re Cook's Will, 88 Okla. 301, 213 P. 78; Arkansas Fertilizer Co. v. Brattin, 127 Okla. 9, 260 P. 43; Harrelson v. Brown, 131 Okla. 267, 268 P. 731; Thomas v. Morgan, 132 Okla. 297, 270 P. 562. We have examined these cases, and find that in the cases of Brown v. Marks, Mitchell v. Bruce, Arkansas Fertilizer v. Brattin, Harrelson v. Brown, and Thomas v. Morgan, supra, the opinion filed in each of these cases shows the motion for new trial to have been passed upon by the judge who presided at the trial, and in the cases of Baber v. Overton and Bahm-Biery Oil Co. v. Erwin, supra, an examination of the record filed in this court shows a like condition as to the overruling of the motion for new trial. In Re Cook's Will, supra, the case-made was settled and signed by a special judge selected to determine a question of fact arising upon the settlement of the case-made and wherein the court held that the statute authorizing the selection of the special judge for such purpose did not authorize him to settle the case-made.

¶7 Section 788, C. O. S. 1921, in so far as is necessary to determine the question now before the court, is as follows: