Dickerson v. Botchleott ( 1927 )

This case is before this court upon motion to dismiss, and upon an examination of the record it is found that the appeal is attempted to be brought upon a petition in error with case-made attached. The purported case-made was not filed with the papers in the case in the trial court. The case-made must be filed with the papers in the trial court, and unless so filed, is a nullity, and this court does not have jurisdiction to review errors assigned. School Dist. of Okmulgee Co. v. Hinchie, 62 Okla. 97, 162 P. 206; Banks v. Watson, 40 Okla. 450, 139 P. 306.

The record cannot be considered as a transcript, for the reason that the same is not certified to, as such, by the clerk of the trial court. Where the case-made is a nullity because not filed with the papers in the case in the trial court, the same cannot be considered as a transcript where it is not certified to, as such, by the clerk of the trial court.

In the case of Martin v. Milnor et al., 52 Okla. 232,152 P. 388, it was held by by this court that:

"Where a case-made is a nullity, because not served within time, the same cannot be considered as a transcript, where it is not certified by the clerk of the trial court."

The final order from which this appeal is attempted was made on May 14, 1925, and the appeal lodged in this court on November 13, 1925. More than six months having elapsed since the final order appealed from was made, it is now too late to supply the necessary certificate of the clerk of the trial court certifying to the record as a transcript. Buehl v. American Indemnity Co., 72 Okla. 95, 178 P. 884.

Applying the above rules to the case at bar, it follows that the appeal in this case should be, and is dismissed.