LACER v. DAVIS HAT CO.

LACER v. DAVIS HAT CO.
1941 OK 365
119 P.2d 850
189 Okla. 696
Case Number: 30370
Decided: 11/04/1941
Supreme Court of Oklahoma

LACER
v.
DAVIS HAT CO.

Syllabus

¶0 APPEAL AND ERROR--Dismissal for insufficiency of case-made.
Where the purported appeal is by casemade and there is a failure to comply substantially with section 532, O. S. 1931, 12 Okla. St. Ann. § 956, in furnishing a sufficient case-made and no reasonable excuse is offered for such failure, the proceedings in error will be dismissed.

Appeal from District Court, Caddo County; Will Linn, Judge.

Action on account by Davis Hat Company against L. F. Lacer. From a judgment refusing to vacate and set aside a default judgment, defendant appeals. Dismissed.

J. W. Osmond, of Anadarko, for plaintiff in error.
Thomas B. Losey, of Chickasha, for defendant in error.

PER CURIAM.

¶1 This is an appeal from an order and judgment of the district court refusing to vacate and set aside a default judgment entered on the 13th day of September, 1940, in favor of Davis Hat Company against L. F. Lacer, defendant. The judgment was for $133.50 and costs.

¶2 From the best information obtainable by a review of the proceedings at the time of application for the motion to vacate and set aside the default judgment and grant a new trial, the action was commenced in the justice of the peace court. An action had been brought on a bond therein on a former judgment which had become final. Either Mr. Phillips, formerly the attorney for the defendant Lacer, or some other person lost the papers after the same had been transferred to the district court. The case-made herein contains only the judgment and a motion for new trial and the proceedings dealing, among other things, with the lost papers.

¶3 A motion to dismiss has been filed in which the plaintiff attacks the appeal in this court for failure to comply with section 532, O. S. 1931, 12 Okla. St. Ann. § 956, which provides that a casemade containing so much of the record and proceedings as is necessary to review the alleged errors shall be presented to this court.

¶4 In response to the motion to dismiss, the defendant admits that the papers have been lost and makes no effort to supply lost pleadings under section 244, O. S. 1931, 12 Okla. St. Ann. §310, but attempts to excuse the failure to present a proper case-made by stating that plaintiff would not stipulate with him or otherwise agree on a record.

¶5 Under section 532, supra, it is the duty of the plaintiff in error to present so much of the record and proceedings, including the evidence, necessary to review the errors complained of. This was not done. We are of the opinion, and hold, that the case should be dismissed for failure substantially to comply with section 532, supra.

¶6 Appeal dismissed.

¶7 WELCH, C. J., CORN, V. C. J., and HURST, DAVISON, and ARNOLD, JJ., concur. RILEY, OSBORN, BAYLESS, and GIBSON, JJ., absent.