HARKINS v. MCPHAIL

HARKINS v. MCPHAIL
1920 OK 14
187 P. 222
77 Okla. 162
Case Number: 10986
Decided: 01/13/1920
Supreme Court of Oklahoma

HARKINS
v.
MCPHAIL et al.

Syllabus

¶0 Appeal and Error--Defective Case-Made--Dismissal.
A proceeding in error brought to this court on a case-made, where it does not appear from the record, or otherwise, that the defendants were present, either personally or by counsel, at the settlement, or that notice of the time thereof was served or waived, or what amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.

Error from District Court, Grady County; Cham Jones, Judge.

Action by Willis Harkins against Van McPhail and others for possession of real estate, for damages for withholding possession of same, and for rents and profits. Judgment for defendants, and plaintiff brings error. Dismissed.

C. McCasland, for plaintiff in error.
B. D. Welborne, Barefoot & Carmichael, and Harry Hammerly, for defendants in error.

KANE, J.

¶1 The facts alleged in defendants in error's motion to dismiss are that the purported case-made filed herein and attached to the petition in error was not signed and settled and allowed in the manner provided by law, for the reason that defendants in error did not receive any notice of the time and place of the purported settlement of the case-made, and were not present at the time of such purported settlement; nor was notice of the time and place of settlement waived, or suggestions of amendments to said case-made offered.

¶2 These facts are sufficient for dismissal. First National Bank of Collinsville v. Daniels, 26 Okla. 383, 108 P. 748; Richardson v. Thompson, 33 Okla. 120, 124 P. 64; School District No. 18, Creek County, v. Griffith et al., 33 Okla. 625, 127 P. 258; Cobb & Co. et al. v. Hancock, 31 Okla. 42, 119 P. 627; Southwestern Surety Insurance Co. v. Going et al., 48 Okla. 460, 150 P. 488; Wood et al. v. King, 49 Okla. 98, 151 P. 685; Guymon Electric Light and Power Co. v. Spiers, 73 Okla. 180, 175 P. 347.

¶3 The motion to dismiss is sustained.