ABRAHAM v. ROLAND OIL CO.

ABRAHAM v. ROLAND OIL CO.
1927 OK 386
260 P. 771
127 Okla. 255
Case Number: 18658
Decided: 11/01/1927
Supreme Court of Oklahoma

ABRAHAM et al.
v.
ROLAND OIL CO. et al.

Syllabus

¶0 Appeal and Error--Case Made--Necessity for Settling and Signing by Trial Judge.
Except as provided in section 788, C. O. S. 1921, a case-made must be settled and signed by the judge who tried the cause, and the stipulation of counsel that the case-made is correct will not do away with the necessity of such authentication.

Error from District Court, Creek County; Fred A. Speakman, Judge.

Action between Joe Abraham et al. and the Roland Oil Company et al. From judgment in favor of the latter, the former appeal. Dismissed.

Cheatham & Beaver, for plaintiffs in error.
Walker & Lewis, Thrift & Davenport, and W. C. Hodges, for defendants in error.

PER CURIAM.

¶1 This is an attempt to appeal to this court from a Judgment of the district court of Creek county by petition in error with purported case-made attached from a judgment of the trial court rendered on the 1st day of February, 1927, and wherein the motion for new trial was overruled on the 17th day of February, 1927. Notice of appeal was given in open court and time given in which to make and serve case-made. The case-made was served on June 10, 1927, and thereafter, on the 24th day of June, 1927, the parties to this appeal entered into a stipulation that the case-made was a true, correct, and complete transcript of the proceedings had, all the evidence offered and introduced, all the orders and rulings made and exceptions allowed, and all the record upon which the judgment and journal entry of the cause was made, and waived the right to suggest amendments and consented that the same might be settled immediately and without notice, and the parties joined in request that the judge of the trial court settle, sign, and certify the same. The case-made as filed in this court was never settled, signed, and certified by the trial judge. The defendants in error have filed herein their motion to dismiss for that reason.

"A purported case-made which has not been settled and signed by the judge who tried the case and attested by the clerk and filed with the papers of the case in the trial court is ineffective as a case-made and confers no jurisdiction upon this court to review any of the proceedings of the trial court.

"A stenographer's report of the proceedings in the trial court which has not been signed and settled by the trial judge as a case-made nor attested by the clerk nor filed in the district court nor certified by the clerk of the trial court as a transcript, cannot be considered by this court either as a case-made or transcript. It is a nullity, and confers no jurisdiction upon this court to review the proceedings of the trial court." Hall v. Phoenix Ins. Co. et al.,

¶2 The plaintiffs in error have responded to the motion to dismiss and urge that because the case-made contains a stipulation by attorneys in the case that the case-made contains all the pleadings, evidence, etc., and contains all things necessary to embrace in the certificate of the trial judge, that such stipulation does away with the necessity of such certificate. The plaintiffs in error have cited no authority in support of this contention, and we know of none. In the case of Hodgden et al. v. Commissioners of Ellsworth County, 10 Kan. 637, the Supreme Court of the state of Kansas laid down the following rule:

"A case-made must be settled and signed by the judge who tried the cause; and the stipulation of counsel that the case is correct will not do away with the necessity of such authentication."

¶3 The Supreme Court of the state of Arizona in the case of the City of Tombstone v. Reilly,

"Under Rev. St. par. 843, providing that if the parties or their attorneys agree upon a statement of facts on appeal they shall sign it, and submit it to the judge for his approval and signature, such approval and signature are indispensable, and in their absence a stipulation, that the judge approved and signed the statement is insufficient to justify its consideration as part of the record."

¶4 And in the body of the opinion said:

"The trial court is so far interested in the matter that it should see the record presents to the Supreme Court the case as tried in the court below. * * * No agreement of counsel can take away the right, nor make it any less the duty, of the judge, under the statute, to approve and sign the statement, before it becomes a part of this record."