Moore v. Howard Mercantile Co.

KANE, J. 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 *492 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 Pac. 647; First Nat. Bank v. Daniels, 26 Okla. 383, 108 Pac. 748; Lister v. Williams, 28 Okla. 302, 114 Pac. 255; Harrison v. Penny, 28 Okla. 523, 114 Pac. 734. Upon the authority of the foregoing cases, the appeal is dismissed. All the Justices concur.