Oklahoma Auto Supply Co. v. Mathey , 53 Okla. 391 ( 1916 )

This was an action of replevin brought in a justice court, and from there appealed to the superior court of Muskogee county. At the trial, after plaintiff had introduced its evidence, defendant Mathey and the interpleader, Von Unworth, demurred thereto, which demurrer was sustained. Motion for a new trial being overruled, plaintiff brings error to this court.

Motion to dismiss the proceeding in error has been filed, one of the grounds thereof being that no notice for the settlement of the case-made was served upon Mathey and Von Unworth, and that such notice had not been waived. An examination of the case-made supports the motion, for it does not appear that such notice of settlement of case-made was served; nor that the suggestion of amendment requested by said Mathey and Von Unworth was incorporated into the case-made, nor that they were present, either in person or by counsel, at the settlement of said case-made. The appeal being by case-made, because of plaintiff in error's failure to comply with the statutory provisions as to service thereof, it must be dismissed. Ft.Smith W. R. Co. v. State Nat. Bank, 25 Okla. 128,105 P. 647; Wood v. Jones, 32 Okla. 640, 122 P. 678; Brown v. Marks,45 Okla. 711, 146 P. 707; Foral v. Bogle, 44 Okla. 805,146 P. 706; Comanche Mercantile Co. v. Northwestern Knitting Co., 54 Okla. ___, 153 P. 1158.