Brinkley v. Brinkley

PER CURIAM.

The petition in error with case-made attached was filed in this court on August 18, 1945. A motion to dismiss has been filed for the reason that the case-made was never filed in the trial court. A response to the motion has been filed in which it is requested that the case-made be withdrawn for correction and amendment in order to allow the clerk to mark the same filed.

We are of the opinion, and hold, that there is no authority permitting the filing of the case-made in the trial court after the time for appeal to this cotirt has expired. The order and judgment from which the appeal is taken was entered on the 19th day of April, 1945.

In Hillery v. Cox, 125 Okla. 124 , 256 P. 915 , we said:

“A case-made filed in this court in connection with the petition in error, which has never- been filed in the office of the clerk of the trial court from which the appeal comes, is a nullity and cannot be considered by this court for the purpose of showing the proceedings in the court below.”

A case-made cannot be filed in the trial court or attested by the clerk after the time for appeal has expired. State ex rel. Gross v. American National Bank of Oklahoma City, 107 Okla. 265 , 232 P. 52 .

The appeal .is dismissed, GIBSON, C.J., HURST, V.C.J., and RILEY, OSBORN, and DAVISON, JJ., concur. BAYLESS and WELCH, JJ., dissent.