Opinion
No. 5719
Opinion Filed March 3, 1914.
1. APPEAL AND ERROR — Case-Made — Failure to File Below — Dismissal. A case-made filed in this court which does not show that it has been filed in the office of the clerk of the trial court is a nullity, and where such a case-made remains in this court after the expiration of the statutory time in which to perfect an appeal, on motion the appeal will be dismissed.
2. SAME — Certifying as Transcript. Certifying a case-made as a transcript avails nothing where no error is assigned apparent on the face of the record.
(Syllabus by the Court.)
Error from County Court, Pittsburg County; B. P. Hammond, Judge.
Action between A. L. Banks and others and Caroline N. Watson and others. From the judgment, the parties first named bring error. Dismissed.
Kent V. Gay, for plaintiffs in error.
Robt. N. McMillan and Andrews Day, for defendants in error.
The judgment from which this appeal is prosecuted was rendered on April 28, 1913. On the same day motion for a new trial was filed, and on May 15, 1913, was overruled. The case-made bears no endorsement purporting to show that it was filed in the office of the clerk of the trial court, and for that reason it is a nullity. Rev. Laws 1910, sec. 5242; St. Louis, I. M. S. R. Co. v. Burrow, 33 Okla. 701, 127 P. 478. The statutory period of six months, within which to perfect an appeal to this court, having expired, no time remains within which plaintiffs in error can withdraw the case-made and perfect the same by filing it with the clerk of the trial court; and, upon the authority of Brooks et al. v. United Mine Workers of America et al., 36 Okla. 109, 128 P. 236, and Ft. Smith W. R. Co. v. McKee, 38 Okla. 194, 132 P. 497, the case-made cannot be considered on appeal. Certifying the same also as a transcript avails nothing, for the reason that no error is assigned apparent on the face of the record. The motion to dismiss is sustained.
All the Justices concur.