1. APPEAL AND ERROR — Case-Made — Settling and Signing — Time for Presentation. Where a case-made has been presented within the time fixed by the trial judge, the plaintiff in error may, at any time after the expiration of the time fixed for suggesting amendments and within the time in which an appeal may be taken to this court, upon the prescribed notice, present to the trial judge for settling and signing said case-made.
2. SAME — Settling and Signing — Notice. When the plaintiff in error has presented a case-made, after the time fixed to suggest amendments, and given the prescribed notice of the time and place that the trial judge will be asked to settle and sign the same, and the trial judge is absent at the time and place named in such notice, such notice of the time and place to settle and sign such case made becomes functus officio, and, before such case-made can be legally settled and signed, another notice of the time and place of settling and signing the same must be served upon the opposite party, unless such party appears or waives such notice.
3. SAME — Settling Without Notice — Dismissal. A case-made, settled and signed without service of notice, stating the time and place in which the presiding judge will be asked to settle and sign the same upon all of the opposite parties, and without their appearance, either in person or by attorney, and without their waiver of such notice, is a nullity, and confers no jurisdiction on this court to decide any question thereunder.
(Syllabus by Collier, C.)
Opinion by COLLIER, C. (after stating the facts as above).
There is no question that the case-made was presented in time and proper notice given to the defendants in error that the judge would be asked to settle and sign the case-made at his chambers on July 2, 1914, and the fact that the judge at said time was absent from the place named in the notice of the time of settling and signing said case-made, and did not at such time settle and sign said case-made, cannot work to the prejudice of the plaintiff in error, but with the passing of the day at which notice had been given for the settling and signing of the case-made, without action on the part of the trial judge, said notice was rendered functus officio, and consequently the case-made stood as though no notice had been given of the time and place in which to settle and sign the same. Where a case-made has been presented within the time fixed by the trial court, or at any time after the time fixed for suggesting amendments, and upon notice for the time specified by the order of the trial judge, the case-made may be settled and signed, provided the same is within the time in which an appeal might be taken to this court; and, if for any reason the trial court is absent, any number of successive notices may afterward be given, fixing the time in which the case-made is to be settled and signed; and the case-made may be legally settled and signed at any time, after the time fixed for suggesting amendments has expired, upon proper notice, prior to the expiration of the time within which an appeal to this court may be taken.
The foregoing statement of the law of settling and signing a case-made is so thoroughly established as not to require the citation of authorities. A case-made, settled and signed without notice of the time and place to each and all of the opposite parties, and without the appearance of all the opposite parties, either in person or by their attorneys, and without their waiver as to such settling and signing, is a nullity, and does not confer jurisdiction upon this court to decide any question arising thereunder. Moore v. Howard Mer. Co., 40 Okla. 491, 139 P. 524.
The certificate of the trial judge, on the hearing of the matter of amending said case-made, "that no notice that said case-made would be presented on the 24th day of August, 1914, was in fact served upon defendants in error, Lilly Going and Horton Phillips," renders the case-made, settled and signed August 24, 1914, a nullity. Tracy v. Dennis, 45 Okla. 208, 145 P. 772; Moore v. Howard Mer. Co., supra.
In Wyant v. Wheeler, 38 Okla. 68, 132 P. 137, it is held:
"Though the case-made is served within the prescribed time, yet if the party is not served with notice of the time and place of its presentation for settlement, unless such an appearance was made as would operate to waive notice, or amendments as suggested by such party were allowed by the trial court, the case-made as settled cannot be considered in this court for any purpose."
See, also, Thompson v. Fulton, 29 Okla. 700, 119 P. 244; First National Bank v. Daniels, 26 Okla. 383, 108 P. 748; Burdick on New Trials and Appeals (1907) section 233, p. 200.
The required notice of time and place for settling and signing the case-made not having been given, and no appearance nor waiver of notice having been shown, this court is without jurisdiction to decide any question thereon; and this appeal should be dismissed.
By the Court: It is so ordered.