Atchison, T. & S. F. Ry. Co. v. Robinson

WILLIAMS, J. The verdict was returned in the lower court in favor of the plaintiff (defendant in error) on April 20, 1910, before the Honorable J. J. Carney, one of the regular judges of the Thirteenth district court judicial district, who was sitting in the Tenth district under appointment by the Chief Justice of the Supreme Court, by virtue of section 9, art. 7, of the Constitution. On April 21, 1910, the motion for a new trial was filed. On April 30, 1910, the same having been overruled, the defendant was allowed 60 days within which to make and serve a case-made; the plaintiff to have 10 days in which to suggest amendments thereto; the case-made to be settled and signed on 5 days notice by either party to the other. On June 30, 1910, the Honorable Roy Hoffman, the regular judge of the Tenth district court judicial district, made an order allowing the defendant 60 days, in addition to the time theretofore granted, within which to make and serve the case-made; 10 days to the plaintiff to suggest amendments; the case-made to be settled upon 5 days notice, in writing by either party. The case-made was served on the attorney for plaintiff on August 27, A. D. 1910, which was within due time. On September 3, 1910, plaintiff’s attorney certified to the attorneys for the defendant that he had no amendments to suggest. On the same day notice was served upon him by the attorneys for the defendant that the case-made would be presented to Judge Carney at his *708 chambers in Oklahoma City for settling and signing on September 12, 1910. The attorney for the plaintiff moves to dismiss this proceeding in error on the grounds: First, that Judge Carney had ceased to hold court in the Tenth district court judicial district, under the original appointment by the Chief Justice, and therefore had no authority to settle the case-made outside of said district; second, that the time allowed the defendant in which to make and serve case-made having expired, together with the time to suggest amendments, such time was of the essence of his jurisdiction to settle and sign the same; and therefore he was without authority after the expiration of such time to settle and sign such case-made. The first proposition has been decided adversely to the movant’s contention in Grayson v. Perryman, 25 Okla. 339, 106 Pac. 954. The second contention has also been determined adversely to him in the following Oklahoma cases: Barnes v. Lynch, 9 Okla. 11, 59 Pac. 995; Burnett v. Davis, 27 Okla. 124, 111 Pac. 191. The motion to dismiss is therefore overruled. All the Justices concur.