BRADY v. BANK OF COMMERCE OF COWETA

BRADY v. BANK OF COMMERCE OF COWETA
1912 OK 14
121 P. 250
33 Okla. 568
Case Number: 2818
Decided: 01/09/1912
Supreme Court of Oklahoma

BRADY et al.
v.
BANK OF COMMERCE OF COWETA et al.

Syllabus

¶0 APPEAL AND ERROR--Setting Case-Made. Motion to dismiss overruled,on the authority of St. L. & S. F. R. Co. v. Davis, ante, 120 P. 562.

Error from District Court, Okmulgee County; W. L. Barnum, Judge.

Action between A. C. Brady and Maude Brady and the Bank of Commerce of Coweta and others. From the judgment, the Bradys bring error. On motion to dismiss.Overruled.

F. F. Lamb, for plaintiffs in error.
Owen & Stone and T. E. Lipscomb, for defendants in error.

KANE, J.

¶1 This cause comes on to be heard upon the motion to dismiss filed by the defendants in error. In support of their motion counsel say:

"That this case is in all respects similar to the cases of Hamilton v. Havercamp [post, 124 P. 73], dismissed by this honorable court, and Richardson v. Beidleman [ante, 126 P. 818], and should be dismissed for the same reasons."

¶2 The case at bar differs from the foregoing cases in this: At the time the case-made was served, which was within the time granted by the judge who tried the cause before his retirement from office, the defendants in error waived their right to suggest amendments and agreed that the case-made might be presented for settlement without notice. It seems to be more analogous to St. L. & S. F. R. Co. v. Davis, ante, 120 P. 562, wherein it is held that the effect of waiving notice of time and place of signing and settling the case-made is to change the definite time fixed for that purpose by the notice to any time within the period which lies between the date of service of the case-made and the expiration of the time for taking the appeal.

¶3 As the retiring judge signed and settled the case-made in the instant case within such time, the motion to dismiss the appeal must be overruled.

¶4 TURNER, C. J., and HAYES and WILLIAMS, JJ., concur; DUNN, J., absent, and not participating.