MOORE v. HOWARD MERCANTILE CO.

MOORE v. HOWARD MERCANTILE CO.
1914 OK 123
139 P. 524
40 Okla. 491
Case Number: 3396
Decided: 03/10/1914
Supreme Court of Oklahoma

MOORE
v.
HOWARD MERCANTILE CO.

Syllabus

¶0 APPEAL AND ERROR--Settlement of Case-Made--Necessity for Notice. Where no notice of the time of settlement of a case-made is given or waived, and there is no appearance of the opposite party either in person or by counsel, a case-made so settled is a nullity, and no jurisdiction is vested in this court to decide any question arising thereon.

Error from County Court, Ellis County; A. E. Williams, Judge.

Action between W. F. Moore and the Howard Mercantile Company. From the judgment, W. F. Moore brings error. Dismissed.

W. A. Briggs, C. B. Warren, and W. H. Springfield, for plaintiff in error
Chas. Swindall and C. B. Leedy, for defendant in error

KANE, J.

¶1 The above-entitled cause comes on to be heard upon a motion to dismiss upon the ground that said case-made was presented to the trial court for signing and settlement, and the same was signed and settled without notice of the time and place of signing and settlement having been served upon the defendant in error or his counsel, and that said defendant in error was not present in person or by counsel at the time said case-made was settled and signed, and never offered any amendments to said case-made and that said case-made was settled and signed without any knowledge or notice on the part of the defendant in error of the time and place the same was to be settled and signed. The motion to dismiss must be sustained. The rule is:

"Where no notice of the time of settlement of a case- made is given or waived, and there is no appearance of the opposite party either in person or by counsel, a case-made so settled is a nullity and no jurisdiction is vested in this court to decide any question arising thereon."

Ft. S. & W. R. Co. v. State Nat. Bank of Shawnee, 25 Okla. 128, 105 P. 647; First Nat. Bank v. Daniels, 26 Okla. 383, 108 P. 748; Lister v. Williams, 28 Okla. 302, 114 P. 255; Harrison v. Penny, 28 Okla. 523, 114 P. 734. Upon the authority of the foregoing cases, the appeal is dismissed.

¶2 All the Justices concur.