Grayson v. Damme

155 P. 1159 | Okla. | 1916

This cause comes on to be heard upon a motion by defendants in error, filed December 22d, to dismiss this appeal upon the ground that the case-made fails to show:

(1) "That the motion for a new trial was filed within 3 days after the rendition of the verdict."

(2) "That the motion for new trial was filed at the same term the verdict was rendered."

On November 18, 1915, plaintiff in error filed a motion asking that the case-made be regarded by this court as amended, or the case-made be withdrawn for correction, so as to show the motion for new trial was timely made. This court "is not authorized to supply omissions or make corrections in the record of the trial court." Bettis v. Cargile et al.,23 Okla. 301, 100 P. 436. Hence that part of said motion which asks that the court regard the amendment as made should be denied.

As the case-made now stands, the motion to dismiss is well taken, but the plaintiff in error having made timely motion to correct the record, so as to show that the motion for new trial was timely made, this court will not dismiss the appeal until opportunity be given plaintiff in error to correct the said case-made, and the motion of plaintiff in error, so far as the same seeks to withdraw the case-made for the purpose of correcting same, should be granted. Section 5243, Rev. Laws 1910.

Plaintiff in error will be allowed to withdraw from this court the case-made filed in this cause, to have said case-made corrected by the trial court, as to when the motion for a new trial was actually made, and to refile said case-made in this court within 30 days from this date; the plaintiff in error to give the defendant in error reasonable notice of his action to have said case-made corrected.

By the Court: It is so ordered.