Mitchell v. Lambard-Hart Realty & Inv. Co.

COCHRAN, J. This case was tried in the district court of Pottawatomie county, by John L. Coffman, district jadge, and judgment was rendered for defendant. From this judgment the plaintiff has prosecuted his appeal to this court and has attached' to Iiis petition in error a ease-made which was settled and signed by C. A. Knight. The case-made does not show that any notice was given of the time and place for settle^ ment of the case-made as provided for by section 5242, Rev. Laws 1910. It also contains no showing as to why the case-made was not settled and allowed by the judge Who tried the case. Not having been settled and signed by the judge who tried the ease, the same is a nullity. Although the record k> this case does not disclose an attempt to prove disputed portions of the ease-made before a special judge under roe provisions of section 5249, Rev. Laws 1910, it is possible that plaintiff in error was attempting to proceed under the prolusions of that section, in having the casn-made settled ana signed before C. A. Knight; but that question is presented in the Matter of the Last Will and Testament of Harriett H. Cook, Deceased—Davis et al. v. Lambard-Hart Realty & Investment Co.—No. 11403 (this day decided), and it is the opinion of the court that section 5249, Rev. Laws 1910, does not authorize a special judge elected under the provisions of that statute to settle and sign the case-made. Only errors occurring during the- trial of the cause, being presented in the petition in error, such errors cannot be reviewed on transcript of the record. Thompson et al. v. Stephens, 73 Oklahoma, 175 Pac. 742; Simpson v. Henderson Sturges Piano Co., 31 Okla. 623, 122 Pac. 174. The judgment of the trial court is affirmed. HARRISON, C. J., and KANE, JOHNSON, and NICHOLSON, J.T.. concur.