RICHARDSON v. BEIDLEMAN

RICHARDSON v. BEIDLEMAN
1911 OK 527
126 P. 816
Case Number: ___
Decided: 11/14/1911
Supreme Court of Oklahoma

RICHARDSON et al.
v.
BEIDLEMAN et al.

SYLLABUS

¶0 An ex-judge is not authorized by section 6075, Compiled Laws of Oklahoma 1909 (section 4445, Statutes of Oklahoma Territory 1893; section 4742, Wilson's Rev. & Ann. St. 1903), to sign and settle a case-made, if, at the expiration of his term of office, the time for making and serving case-made has expired, or no time for signing and settling the case-made has been fixed before his retirement.

(a) The amendment of March 9, 1910 (Sess. Laws 1910, c. 39, § 1, pp. 59, 60), to section 6075, supra, did not change this rule when the ex-judge, or the judge who tried the cause, was living or not otherwise incapacitated from settling and signing the case-made.

A motion for new trial is not a part of the record brought up by a transcript.

When the action of the lower court is sought to be reviewed by a transcript, the proceeding in error must be commenced in this court within a year (now six months) from the date judgment is rendered.

Additional Syllabus by Editorial Staff.

Within Comp. Laws 1909, § 6075, as amended by Laws 1910, c. 39, § 1, providing that, in case of death or other "inability" of the judge, his successor may settle and sign a case-made, the word "inability" means the quality or state of being unable.

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

Action by Katy Richardson and James Richardson against George C. Beidleman and Albert Anderson. Judgment for defendants, and plaintiffs bring error. Dismissed.

For opinion on second rehearing affirming judgment of dismissal, see 126 Pac. 818.

R. M. Dick, of Tulsa, and J. L. Newhouse and F. F. Lamb, both of Okmulgee, for plaintiffs in error.

Lex V. Deckard, Eaton, Beidleman & Carter, and W. W. Wood, all of Okmulgee, for defendants in error.

WILLIAMS, J.

¶1 A motion for new trial having been filed in due time, on June 6, 1910, the same was overruled. Thereupon the plaintiffs (plaintiffs in error) were allowed 90 days in which to make and serve case-made, the defendants (defendants in error) to have 30 days to suggest amendments, and the case-made to be presented for settlement by either party giving the other 10 days' notice. On June 7th plaintiffs filed a motion to set aside the judgment formerly entered, which was overruled. Motion for new trial upon the motion to set aside said judgment being filed in due time was denied on June 28, 1910, on which date plaintiffs were allowed 60 days in which to make and serve a case-made, and defendants 20 days thereafter in which to suggest amendments, case-made to be presented for settlement by either party giving the other 10 days' notice. On July 29, 1910, the time for making and serving case-made in said cause was further extended to October 1, 1910, the defendants having 20 days in which to suggest amendments, the case-made to be settled upon 10 days' notice by either party. On September 30th service of the case-made was accepted by Lex V. Deckard, attorney for Alfred F. Boone and R. G. Galloway, and by George C. Beidleman, as attorney for Albert Anderson and George C. Beidleman.

¶2 In the action in the lower court Katy Richardson and James Richardson were plaintiffs, and George C. Beidleman, International Land Company of Muskogee, Okl., R. G. Galloway, A. F. Boone, Alfred F. Boone, Frank F. Lamb, and Albert Anderson defendants. Before decree, however, the suit was dismissed as to the International Land Company. In the decree the title to certain land was quieted in favor of the plaintiffs, but a lien was adjudged in favor of George C. Beidleman, the defendants R. G. Galloway, A. F. Boone, Alfred F. Boone, and Frank F. Lamb being therein enjoined from claiming any right, title, interest, or estate in and to said premises by virtue of any deed or conveyance held by them, or either of them. The defendant Albert Anderson was also adjudged to be the owner of an undivided two-thirds interest in and to certain of said land. This proceeding in error to review said decree is prosecuted by Katy Richardson and James Richardson as plaintiffs in error against George C. Beidleman and Albert Anderson as defendants in error. On the 9th day of January, 1911, notice was accepted by George C. Beidleman and Albert Anderson as defendants that the case-made would be presented to Hon. Wade S. Standfield, at his chambers in the city of Okmulgee, Okl., for settlement, on the 20th day of January. On notice given subsequent to January 9, 1911, the date on which the term of Hon. W. L. Barnum, as judge of said district, expired, a 10-day notice was given of the time and place at which the case-made in said cause would be presented to him for signing and settling, at which time the same was settled by him, to wit, March 30, 1911. It appears that amendments were never suggested or waived by either George C. Beidleman or Albert Anderson. Under the rule heretofore announced by this court in Burnett v. Davis, 27 Okl. 124, 111 Pac. 191, the time for making and serving a case-made having expired, and no time for settling the case-made before Judge Barnum having been fixed before his retirement from office, he was not authorized to settle this case-made, and his act in so doing was a nullity. It is insisted, however, that before his retirement from office the time for settling the case-made before his successor had been fixed, and therefore the settling and signing of the same before Judge Standfield renders the case-made valid.

¶3 Section 4445 of the Statutes of Oklahoma Territory 1893 (section 4742, Wilson's Revised Statutes 1903; section 6075, Compiled Laws of Oklahoma 1909), which was construed by this court in Burnett v. Davis, supra, was amended by act of the Legislature of March 9, 1910 (Sess. Laws 1910, c. 39, § 1, pp. 59, 60), by adding the following proviso:

Provided, in case of death or other inability of the judge who tried the cause, his successor in office may extend the time for making and serving such case-made and may settle and sign the same in all respects the same as might have been done by the judge who tried said cause and may take testimony concerning the same, and the time intervening between the death or disability of such judge and the qualification of his successor shall not be included in the computation of time allowed for the preparation of such case-made and the appeals of such cases.

Obviously retirement from office does not operate as an inability under the language of this statute, for preceding said proviso the following language is used, which was also contained in the statute prior to amendment, to wit:

And in all causes heretofore or hereafter tried, when the term of the office of the trial judge shall have expired or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired." Then the following proviso: "In case of death or other inability of the judge who tried the cause, his successor in office may extend the time for making and serving such case-made and may settle and sign the same in all respects the same as might otherwise have been done by the judge who tried said cause.

¶4 If the judge who tried this cause is not dead or otherwise incapacitated, although he may have retired from office, under the language, "as might otherwise have been done" by him, he could only settle said case-made in the event that the time fixed or allowed for making and serving the same had not expired, or in the event that such term had expired when the time had been fixed by serving notice in accordance with the order of court fixing the time for the presentation of the same for settlement before such judge. The proviso seems to have the effect of, in case of death or inability, to authorize his successor to act only when the time for making and serving case-made had not expired or the time for presenting same for settlement had been fixed, and had not expired. Inability means "quality or state of being unable." If a judge is not dead, although his term of office may have expired, he is able to settle a case-made, unless he is insane or physically, on account of sickness or other such inability, incapacitated, or is absent from the state. Whitely v. St. Louis & E. R. & W. Ry. Co., 29 Okl. 63, 116 Pac. 165. There is no showing that any such inability existed; on the contrary, it does appear that on the 30th of March Judge Barnum settled this case-made, when none of the conditions existed required by the statute in order for him to be authorized to settle same after his retirement from office. It appears that counsel first acted on the assumption that Judge Standfield was the proper one to settle this case-made, and that afterwards, reaching a contrary conclusion, Judge Barnum was procured to settle the same. The act of Judge Barnum, however, in settling the case-made, is rendered void on account of the fact that no notice was served prior to the expiration of his term of office fixing the time at which it would be presented to him for settlement. It seems that the successor in office of a retiring judge has authority to extend the time for making and serving such case-made only in cases where his predecessor is dead or incapable of settling the same, and then only where the time for making the case had not expired prior to his death or retirement from office, or where, prior to his death or retirement from office, the time had been fixed by notice pursuant to an order of court of such settlement.

¶5 In Palmer v. Harris, 23 Okl. 500, 101 Pac. 852, 138 Am. St. Rep. 822, it is declared by this court that, where a well-settled rule of practice has been silently acquiesced in, it will not be set aside when it would probably cause great inconvenience and confusion in the practice, as it can be easily changed by the Legislature if there is any necessity therefor. The decision in Barnes v. Lynch, 9 Okl. 11, 59 Pac. 995, being made in 1899, we do not feel inclined to re-examine the same to determine whether or not it follows correctly the Kansas cases. For from that day until this, neither the Supreme Court of the Territory of Oklahoma nor this court has made any holding that militates against the same, so far as the facts in the record justified a holding, nor has there been any legislative action contrary thereto.

¶6 The appeal is therefore dismissed.

All the Justices concur.

ON REHEARING

¶1 In this cause an opinion was delivered by this court November 14, 1911, sustaining a motion to dismiss the proceeding in error. The case has again been brought to our attention on a motion for rehearing as to matters that were not considered in that opinion. It is now contended that the alleged case-made may be considered as a transcript; the same having been certified by the clerk as such. The petition in error, with the transcript attached, was filed in this court within a year from the time the motion for new trial was overruled, but not within a year from the time that the judgment was rendered.

¶2  The motion for new trial is not a part of the record brought up by a transcript. Tribal Development Co. et al. v. White Bros. et al., 28 Okl. 525, 114 Pac. 736, and authorities therein cited.

¶3  When the action of the lower court is sought to be reviewed by transcript, the proceeding in error must be commenced in this court within a year from the date judgment is rendered. W. F. Doorley v. Buford & George Mfg. Co., 5 Okl. 594, 49 Pac. 936; Burdett et al. v. Burdett et al., 26 Okl. 416, 109 Pac. 922, 35 L. R. A. (N. S.) 964.

¶4 Counsel also insist that the court overlooked in the former consideration of the motion to dismiss the appeal a stipulation contained in the record, alleging that said stipulation was signed by the attorneys of record in the cause in the lower court, wherein the defendants in error waived the right to suggest amendments, and that under the authority of St. L. & S. F. R. Co. v. Davis, 120 Pac. 562, and Brady v. Bank of Commerce of Coweta, 121 Pac. 250, a rehearing should be granted and the petition to dismiss overruled. But the record does not bear out the statement of counsel. The purported stipulation which reads that "the defendant waives the right to suggest amendments in said case-made, and hereby consents that the same may be settled immediately and without notice, and hereby joins in the request of the plaintiff in error that the judge of said court settle the same and order the same certified to the clerk of the district court and filed according to law," is not signed by all the parties to this proceeding, being signed only by Lex V. Deckard, as attorney for Albert F. Boone and R. G. Galloway, and Wm. M. Mathews, as attorney for J. L. Peacock, and by W. W. Wood, as attorney for Veronia Thompson, Morelis R. Beddoe, Lonzo Beddoe, and Melvina P. Beddoe. The following other indorsement is made: "Service of summons out of the Supreme Court is hereby waived. [Signed] Albert Anderson. Geo. C. Beidleman." This contention, therefore, is not sustained by the record.

¶5 The petition for rehearing is overruled.

All the Justices concur.