LANGLEY v. ALBERT

LANGLEY v. ALBERT
1929 OK 275
282 P. 608
140 Okla. 176
Case Number: 20199
Decided: 07/02/1929
Supreme Court of Oklahoma

LANGLEY
v.
ALBERT et al.

Syllabus

¶0 1. Appeal and Error--Nullity of Case-Made Signed and Settled Before Time Expires for Suggestion of Amendments.
A case-made settled and signed before the expiration of the time allowed for the suggestion of amendments thereto is a nullity unless the right to suggest amendments is waived.
2. Same--Requisites of Notice of Settlement.
A notice of the settlement of the case-made shall specify the time and place when the same will be presented to the judge for settlement and signature.

Appeal from District Court, McClain County; Tom P. Pace, Judge.

Action by L. M. Langley against John Albert, Mary P. Gillett, and others. Judgment for defendants, and plaintiff appeals. On motion to dismiss appeal. Granted as to Mary P. Gillet; denied as to the other defendants.

Twyford & Smith, Leo G. Mann, and G. Lee Gibbs, for plaintiff in error.
Albert Rennie, for defendant in error Mary P. Gillett.

PER CURIAM.

¶1 This is an appeal from a judgment of the district court of McClain county rendered on the 10th day of September, 1928. The motion for new trial was overruled on the 3rd day of October, 1928, notice of appeal was given, and by order of the court the time in which to make and serve case-made was extended 60 days in addition to the time allowed by law. Thereafter, on the 28th day of November, 1928, an order was made extending the time in which to make and serve case-made 60 days in addition to the time theretofore given, and the defendants were given 10 days thereafter to suggest amendments and the case-made to be settled and signed upon 5 days' notice.

¶2 The time thus allowed in which to make and serve case-made expired on the 15th day of February, 1929, and the time in which the defendants were allowed to suggest amendments expired on the 25th day of February, 1929. The case-made was served on Mary P. Gillett on the 29th day of December, 1928, and upon the other defendants upon whom it was necessary to serve the same on the 7th day of January, 1929. On the lastnamed day, notice was served upon the defendants upon whom case-made was served that the case-made would be presented to the trial judge for settlement and signing on the 6th day of February, 1929. The place where said case-made would be presented to the trial court for settlement and signing is not designated in said notice. On January 31, 1929, Mary P. Gillett filed in said cause suggestion of amendments and notice that she desired to suggest additional amendments and objected to the settlement of the case-made on the 6th day of February, 1929. The case-made was presented to the trial judge and by him settled and signed "at Norman in McClain county,, Okla., on the 6th day of February, 1929." The defendant Mary P. Gillett has filed in this court her motion to dismiss the appeal upon the grounds that the case-made was settled and signed before the time in which to suggest amendments had expired and over her objection, she having not in any manner waived her right to suggest amendments, and for the further reason that the case-made was settled and signed in Norman, Cleveland county, while the notice was given that it would be settled in McClain county. Other reasons are assigned in the motion to dismiss which it will be unnecessary to notice.

¶3 A case-made settled and signed before the expiration of the time allowed for the suggestion of amendments thereto is a nullity, unless the right to suggest amendments is waived. Hart v. New State Bank,

¶4 In this case the notice of the time of presentation of the case-made to the trial judge for settlement was duly served upon and accepted by Mary P. Gillett, but the place where said case-made would be presented to the trial judge is not specifically designated. It is limited only to McClain county, and from which the defendant was not informed as to where in said county case-made would be presented for settlement.