
    LIBERTY LIFE INS. CO. v. GREEN.
    No. 19565.
    Opinion Filed Oct. 9, 1928.
    John W. Porter, for plaintiff in error..
    Robertson & Miller, for defendant in error.
   PER CURIAM.

This is an appeal from the district court of Cherokee county, wherein the defendant in error was plaintiff, and plaintiff in error defendant.

The appeal is by petition in error with case-made attached. The record is also certified to as a transcript. A motion to dismiss is lodged in this court to dismiss the appeal for the reason .that the case-made was settled and signed by the trial, judge in the absence of and without notice to the defendant in error having been given of the time and place for settlement thereof .and without- such notice in any manner waived by the defendant in error. An examination of the record does not disclose any notice was given the defendant in error of the time and place of settlement of case-made, or that the defendant in error was present when the ease was settled and signed. The purported’ waiver incorporated in the case-made is unsigned by either of the parties. A case-made settled and signed by the trial judge in the absence of, and without notice of th'e time and place of settlement thereof to the defendant in error, is a nullity unless such notice is in some manner waived by the parties. Ranney-Davis Mercantile Co. v. Morris, 88 Okla. 107, 211 Pac. 1044; Dies v. Boyngton, 88 Okla. 156, 212, Pac. 318; Carr v. St. Louis-San Francisco Ry. Co., 118 Okla. 223, 247 Pac. 38; Morris v. West Publishing Co., 118 Okla. 237, 247 Pac. 52.

Th'e certificate of the trial judge, recites that the defendant in error waived all rights of amendment 'in writing and agreed in writing that the case-made might be signed and settled without notice, upon presentation. and the plaintiff in 'error insists that sucia certificate is verity and. must control. In the case of Town et al. v. Crawford et al., 106 Okla. 254, 234 Pac. 208, tins court field tfiat tfie certificate of tfie trial judge is only prima facie evidence, of tfie facts recited tfierein, and tfiat wfiere on the face of the record it is shown tfiat tfie purported stipulation waiving tfie suggestion of amendments and waiving notice of settlement of ease-made is unsigned, tfie certificate of tfie trial judg'e reciting a waiver of notice and suggestion of amendments in this respect is erroneous, and tfie. record will control. See, also, Dehner v. Curry, 64 Okla. 164, 166 Pac. 81; Powell v. First State Bank, 56 Okla. 44, 155 Pac. 500; City of Lawton v. Hills, 53 Okla. 243, 156 Pac. 297.

Plaintiff in error further urges tfiat tfie record is Certified tó as a transcript, and tfiat they may be heard in this court thereon. Tfie. only error assigned in tfie petition in error tfiat can be reviewed upon transcript is the' action of tfie trial court in overruling tfie demurrer to plaintiff’s petition on tfie 28tfi day of November, 1927. Tfie appeal was lodged in this court on July 14, 1928, and therefore not lodged in this court within six months from tfie date of tfie overruling of tfie demurrer, and tfie appeal therefore was not filed in this court within time required by law. See McGrath v. Rorem, 123 Okla. 163, 252 Pac. 418; Aultman Taylor Machinery Co. v. Fuss, 86 Okla. 168, 207 Pac. 308; Brooks v. Watkins Medical Co., 81 Okla. 82, 196 Pac. 956.

Tfie case-made, as presented in this appeal, is a nullity, and presents nothing to this court for review. Tfie action of tfie trial .court in overruling tfie demurrer to plaintiff’s petition cannot fie reviewed by this court on transcript, for the reason tfie same was not presented in time or by a valid case-made. Tfie motion of tfie defendant in error to dismiss is sustained, and tfie appeal is hereby dismissed.  