School Dist. No. 26 of Okmulgee County v. Hinchie

Opinion by CAMPBELL, C. This action was tried in the county court of Okmulgee county, to which court it has been appealed from the justice of the peace, and in such trial the defendant in error recovered a judgment. The record of the trial court is made to appear to this court by means of a case-made, which is attached to the petition in error as an exhibit. The petition in error alleges that a certified transcript of the record is attached, but upon inspection of the attached record it seems to be a well-prepared case-made in form and substance. Such ease-made is duly settled, signed, and attested, but contains no certificate of the clerk which in any manner authenticates it as a transcript of the record. It cannot be treated as a transcript of the record for that reason, and no errors are assigned in the petition in error which could be considered under a transcript of the record. We conclude, therefore, that an appeal comes to this court upon a case-made, instead of a transcript of the record. But it does not appear that such attached case made has been filed in the office of the clerk of the court from which the appeal comes. In order for such case-made to be considered by this court, it must have been filed in the lower court. Such is required by section 5242, Rev. Laws 1910, which provides in part as follows: “The case and amendments shall, upon three days’ notice, be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case.” *98 The filing thereof lias been held to be indispensable to its validity as a means of bringing the record of the lower court here tor review in the following reported cases: Banks v. Watson, 40 Okla. 450, 139 Pac. 306; Gibbs v. Tanner, 43 Okla. 477, 143 Pac. 189; Tucker et al. v. Thraves, 45 Okla. 209, 145 Pac. 784. The rule laid down by the foregoing authorities is to the effect that, when the case-made is not filed in the trial court, it iá a nullity, and cannot be considered by this court. Under such rule, we cannot consider the case-made, which is attached to the petition in error in this case, and the appeal, for that reason, is dismissed. By the Court: It is so ordered.