Opinion
No. 216
Opinion Filed November 9, 1909.
APPEAL AND ERROR — Case-Made — Correction. When a case-made or record is filed in the Supreme Court, if any evidence heard on the trial of such cause is omitted therefrom, such court may on its own motion order, within a reasonable time to be fixed by said court, that such omitted parts under the direction of the trial judge may be incorporated in the case-made with the same effect as if it had been incorporated at the beginning. See section 1, art. 4, c. 28, p. 322, Sess. Laws Okla. T. 1905.
(a) No appeal may be dismissed by reason of such omission until an opportunity for such correction has been allowed.
(Syllabus by the Court.)
Error from District Court, Craig County.
Action between England Bros. and J. W. Young and others. From the judgment, England Bros. bring error. Permission to withdraw case-made for correction.
Geo. E. McCulloch, for plaintiffs in error.
Geo. B. Denison and W. P. Thompson, for defendant in error.
It is insisted by the defendants in error that the case-made does not affirmatively show that it contains all the evidence heard by the trial court. Section 1, art. 4, c. 28, p. 322, Sess. Laws, Okla. T. 1905, provides that, when a record or case-made is filed in the Supreme Court in either a civil or criminal cause, if any evidence heard on the trial of said cause is omitted therefrom, such court may, on its own motion, order within a reasonable time, to be fixed by said court, that such omitted parts under the direction of the trial judge may be incorporated at the beginning, and that no appeal shall be dismissed by reason of such error until an opportunity for such correction is allowed; and, it appearing that there is some question as to whether or not the record or case-made affirmatively shows that all the evidence introduced before the trial court is contained therein, it is hereby ordered that the plaintiff in error shall be permitted to withdraw this record or case-made for such correction, and that such correction may be made at any time within 40 days from date hereof upon reasonable notice to the opposite side. The costs of this proceeding, however, up to this date, are to be taxed against the plaintiff in error.
All the Justices concur.