Cowan v. Maxwell

DUNN, C. J. This case is before us on petition for rehearing filed to an opinion delivered January 11, 1910. The judgment appealed from was rendered June 1, 1908. Time was not extended for the making and serving of a case-made, but a purported, copy of the pleadings, evidence, and judgment were compiled by plaintiff in error, and on the 19th day of June, 1908, the judge as clerk of his court attached a formal ease-made certificate thereto, which is sufficient in terms to meet the requirements of a certificate to a transcript of the record. The purported case-made, not being served within three days after the judgment or order complained of nor within any extension of time granted by the trial court, is ineffectual to present for review any of the alleged errors occurring on the trial. Carr v. Thompson et al., ante, 110 Pac. 667; Devault et al. v. Merchant’s Exchange Co., 22 Okla. 624, 98 Pac. 342; London & Lancashire Fire Ins. Co. v. Cummins et al., 23 Okla. 126, 99 Pac. 654; Bettis v. Cargile et al., 23 Okla. 301, 100 Pac. 436. Yiewing the case presented on the transcript, there is before us for our consideration by the petition in error but one assignment, which is that the court erred in overruling the demurrer to the answer. Counsel in their brief argue other propositions raised by the petition in error, rather than this one, but we have considered it for the purpose of ascertaining whether or not on the face of the record proper error is shown. The answer referred to seeks to plead a former judgment, and it appears to us that it sufficiently states the essential elements of such *89 a plea, so that it constitutes a defense to plaintiff’s petition. It avers that the instant case was for the same cause of action between the same parties as a previous case, and that the judgment therein was rendered on the merits of the case by a justice of the peace with jurisdiction of the parties and the subject-matter, giving the date on which the same was rendered, and averred that it had not been appealed from. This in our judgment is sufficient. Section 127, art. 8, par. 4335, c. 66, Wilson’s Rev. & Ann. St. 1903; section 6707, Comp. Laws 1909; 9 Eney. Plead. & Prac. pages 619, 630, and cases cited. The former opinion in this case dismissing the petition in error by reason of defects in the case-made is accordingly recalled, and the judgment of the' trial court is hereby affirmed. All the Justices concur.