PERFECTION REF. CO. v. WOOLWORTH.

PERFECTION REF. CO. v. WOOLWORTH.
1919 OK 334
185 P. 327
76 Okla. 297
Case Number: 10858
Decided: 11/18/1919
Supreme Court of Oklahoma

PERFECTION REF. CO.
v.
WOOLWORTH.

Syllabus

¶0 Appeal and Error--Dismissal--Case-Made--Notice.
Where it does not affirmatively appear that notice of time and place of signing and settling case-made was served on opposing party or his counsel, or that such notice was waived, or that opposing party was present in person or by counsel, the appeal will be dismissed on motion of defendant in error.

Error from District Court, Payne County; A. R. Swank, Judge.

Action by L. A. Woolworth against Perfection Refining Company. Judgment for plaintiff, and defendant appeals. Dismissed.

Robt. A. Lowry and Andrew W. Little, for plaintiff in error.
Burdick & Wilson and J. M. Springer, for defendant in error.

OWEN, C. J.

¶1 The case-made was served on July 18th, and written notice given defendant in error that it would be presented on July 30th to the trial judge to be signed and settled. This notice failed to state whether the case-made would be presented in Logan or Payne county, the two counties composing the judicial district. The case-made was not presented on July 30th, but was presented, signed and settled on August 23d. The record does not contain any notice or waiver of the presentation on August 23rd. nor does it appear defendant in error was present, either in person or by attorney, at the time the case-made was signed and settled.

¶2 It must affirmatively appear that notice of the place and time of signing and settling a case-made was served on the opposing party or his counsel, or that such notice was waived, and where the record fails to show such notice or waiver, and it does not appear that the defendant in error was present, either in person or by counsel, when the case-made was signed and settled, the proceeding will be dismissed on motion of defendant in error. Guymon Elec. L. & P. Co. v. Spears, 73 Okla. 180, 175 P. 347; Grayson v. Perryman, 25 Okla. 339, 106 P. 954; First Natl. Bank of Collinsville v. Daniels, 26 Okla. 383, 108 P. 748; Cooper v. Chapman, 26 Okla. 600, 110 P. 722.

¶3 The motion to dismiss the appeal will be sustained and the appeal dismissed.