THOMAS v. REYNOLDS

THOMAS v. REYNOLDS
1947 OK 109
179 P.2d 119
198 Okla. 395
Case Number: 32918
Decided: 04/01/1947
Supreme Court of Oklahoma

Syllabus

¶0 APPEAL AND ERROR - Nullity of case-made not settled as required by statutes.
Where there has been neither a settlement of the case-made as required by 12 O.S. 1941 § 958, nor a stipulation of settlement as authorized by 12 O.S. 1941 § 966, such case-made is a nullity, and where the alleged errors can only be reviewed by case-made the appeal will be dismissed.

Appeal from District Court, Creek County; C.O. Beaver, Judge.

Proceeding on appeal from an order admitting a will to probate. From a judgment for S.W. Reynolds et al., Everett Lane Thomas appeals. Dismissed.

Hendrix Wolf, of Stillwater, for plaintiff in error.

Speakman & Speakman, of Sapulpa, and Kermit Nash, of Drumright, for defendants in error.

PER CURIAM.

¶1 This is an appeal by Everett Lane Thomas from a final order of the district court entered in a proceeding on the probate of a will. The appeal is by petition in error and there is attached to the petition and made an exhibit a purported case-made which has never been settled by the trial court nor is there any stipulation of a settlement of the case-made.

¶2 A motion to dismiss has been filed for the reason that the case-made has not been settled. The motion must be sustained.

¶3 This court has many times held that there has been no settlement of the case-made as required by 12 O. S. 1941 § 958, and no stipulation of settlement as authorized by 12 O. S. 1941 § 966, the purported case-made is a nullity, and where the alleged errors can only be reviewed by case-made the appeal will be dismissed. Jernigan v. Commerce Trust Co., 136 Okla. 12, 275 P. 1049; Alexander v. First National Bank, 136 Okla. 251, 277 P. 667; Barker v. Southwest Homes Corporation, 162 Okla. 77, 19 P.2d 141.

¶4 The record is certified as a transcript but by reference to the allegations of error it may be seen that the only errors complained of are those that must be presented by case-made.

¶5 Appeal dismissed.

¶6 HURST, C.J., and RILEY, OSBORN, BAYLESS, WELCH, GIBSON, and ARNOLD, JJ., concur.