132 P. 808 | Okla. | 1913
The defendants in error move to dismiss this proceeding in error on the grounds (1) that the record attached to the petition in error in this court is neither certified to by the clerk as a transcript nor has the purported case-made been approved by the trial judge, and (2) that the motion for a new trial was not filed within three days after the returning of a verdict.
1. The plaintiff in error admits that he has wholly failed to comply with the law and rules of this court in the matter of the prosecution of this proceeding in error. He attempts to excuse such failure on account of the dissolution of Swanson county by order of the district court of Comanche county, which was *707 afterwards affirmed on review by this court, and the death of the trial judge. The defendants in error set up in their reply, which is not denied on the part of the plaintiff in error, that the case-made as prepared by the plaintiff in error was served on the attorney of record for the defendants in error on July 7, 1911, prior to the time of the rendition of the judgment dissolving the county of Swanson and the death of Frank P. Cease, its county judge. It is not shown that the plaintiff in error by reasonable diligence, after the service of the said case-made, could not have had the same signed and settled by the trial judge prior to the time of his death.
It appears that the motion for a new trial was not filed within three days from the rendition of the verdict. This was essential, unless the defeated party was unavoidably prevented from so doing. Riely v. Robertson,
It is not essential to pass on the other questions raised.
The proceeding in error must be dismissed.
All the Justices concur.