Adams Royalty Co. v. Faulkner

• Decision Date: 03 March 1936
• Docket Number: Case Number: 26719
• Citation: 176 Okla. 423,1936 OK 192,55 P.2d 1033
• Parties: ADAMS ROYALTY CO. v. FAULKNER
• Court: Oklahoma Supreme Court

1936 OK 192

55 P.2d 1033

176 Okla. 423

ADAMS ROYALTY CO. v. FAULKNER

Case Number: 26719

Supreme Court of Oklahoma

Decided: March 3, 1936

Syllabus

¶0 1. APPEAL AND ERROR - Record - Motions and Rulings Thereon After Judgment not Part of Record Proper.

Motions presented to the trial court and proceedings thereon after judgment are no part of the record unless incorporated in a case-made or bill of exceptions.

2. SAME - Procedure to Present Matter not of Record by Bill of Exceptions.

In order to present a matter not of record by a bill of exceptions under the provisions of sections 384, 385, 386, and 387, O. S. 1931, the matters excepted to must be reduced to writing at the time the exception is taken or time must then and there be given not exceeding the term in which to prepare and reduce to writing such bill of exceptions; and the same must be prepared, presented, and allowed within the term to become a part of the record.

Appeal from District Court, Logan County; Henry W. Hoel, Judge.

Action by Charles A. Faulkner against the Adams Royalty Company to foreclose a real estate mortgage. From an order confirming sale and objection thereon, defendant appeals. Dismissed.

Rowland & Talbott, for plaintiff in error.

Bierer & Bierer, for defendant in error.

PER CURIAM.

¶1 This matter was first brought to this court by a transcript of the record, and on December 10, 1935, the cause was dismissed for failure of the transcript to raise the matters complained of for the reason that proceedings after judgment by motion and the orders made thereon are not a part of the record and cannot be considered unless incorporated in a case-made or bill of exceptions, Mires v. Hogan, 79 Okla. 233, 192 P. 811; McMecham v. Christy, 3 Okla. 301, 41 P. 382; Vann v. Union Central Life Ins. Co., 79 Okla. 17, 191 P. 175.

¶2 A petition for rehearing was filed and at the same time the petition was filed an application was made to this court, and upon the face of the application the plaintiff in error was given permission to withdraw the record for the purpose of applying to the trial court for a bill of exceptions for the reason that the term at which the order was made was still running, and within the term at which the order complained of was made, plaintiff in error had presented to the trial court and allowed a bill of exceptions. The same now appears in the record, and if such proceeding is justified this court can proceed to review the errors raised in the petition in error.

¶3 The sole question therefore to be decided at this time is whether a bill of exceptions may be allowed within the term at any time by the judge. Plaintiff in error's position is that he may at any time within the term either present his bill and have the same allowed by the court, or at any time within the term make his first application for time in which to reduce exceptions to writing. Defendant in error moves to strike the bill of exceptions and relies upon the terms of the statute, claiming that the terms thereof provide that the exceptions must either then be reduced to writing at the time they are made or time obtained from the court in which to reduce the same to writing. Both parties agree that the exceptions must be reduced to writing within the term and presented and signed and allowed within the term. The sections relative to the preparing of a bill of exceptions are as follows:

"An exception is an objection taken to a decision of the court or judge upon a matter of law." O. S. 1931, sec. 383.

"The party objecting to a decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term. If the decision objected to is made in vacation or at chambers, the judge may give time to reduce the exception to writing, not exceeding ten days." O. S. 1931, sec. 384.

"No particular form of exception is required. The exception must be stated, with so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible." O. S. 1931, sec. 385.

"Where the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts." O. S. 1931, sec. 386.

"Where the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing, and present it to the judge for his allowance. If true, it shall be the duty of the judge to allow and sign it; whereupon it shall be filed with the pleadings as a part of the record, but not spread at large on the journal. If the writing is not true, the judge shall correct it, or suggest the correction to be made, and it shall then be signed as aforesaid." O. S. 1931, sec. 387.

¶4 The first section cited, supra, is the definition, and refers plainly to exceptions taken to the introduction of evidence and proceedings the trial, while the other provisions relate to the manner of preparing the bill of exceptions, to make the same a part of the record. Section 384, supra, states, when and how a bill must be reduced to writing or time taken to prepare the same, whether the order is made in open court or in chambers; while section 387, supra, explains how the bill shall be presented and allowed after the provisions of section 384, supra, have been met. Vann v. Union Central Life Ins. Co., supra, holds, first, that a motion to vacate, filed under the statute, is an attack upon the validity of the judgment, and the order of the court, either overruling the motion or vacating, the judgment on the ground that it is void on its face, is a final order and judgment involving the merits of the action. It also holds that the motion to vacate and set aside the judgment and order of the court thereon are no part of the record unless they are brought into the same by bill of exceptions or case-made. In the same paragraph it is stated:

"Neither are the objections and exceptions to the order confirming the sheriff's sale any part of the record proper and must be made such by bill of exceptions or case-made."

¶5 And further:

"There is no appeal from the order confirming the sheriff's sale, unless it was assailed in the decree of court on matters arising subsequent to the decree of sale, which matters must be shown by case-made or bill of exceptions, and it therefore appears that this court has no jurisdiction to entertain an appeal based on a transcript of the record because it was not filed within the six months cause it was not filed within the six months allowed by the statute."

¶6 This disposes of the matter first presented, that the proceedings after judgment were not a part of the record and never became a part of the record unless the present proceedings incorporated them therein.

¶7 This court has on a number of occasions construed the provisions of the sections cited above with relation to preparing a bill of exceptions. A bill of exceptions never becomes a part of the record until it is filed in the trial court. Bruce v. Casey-Swasey Co., 13 Okla. 554., 75 P. 280. It can only be allowed by the judge and is complete when signed by him. Herren v. Merrilees, 7 Okla. 261, 54 P. 467. The bill must affirmatively show that it was presented within the time allowed and within the term. Smith v. Bank of Kingfisher, 2 Okla. 358, 37 P. 828. These sections are found in the proceedings relative to trial, and although they apply to the method used to make a matter a part of the record in contemplation of appeal, they are not found in the statute relative to appeal. This court, in Leftwich v. Marks, 98 Okla. 117, 224 P. 536, said:

"An 'exception' is an objection taken to the decision of the court or judge upon a matter of law (section 565, Comp. Stat. 1921), and a party who objects to a decision must except at the time the decision is made, and time may be given to reduce the exception to writing but not beyond term. Section 566, Comp. Stat. 1921. If this procedure is followed, then the bill of exceptions, after being approved and signed by the judge, may be filed in the case as a part of the record and thereafter incorporated in a transcript, and in this manner brought before this court for review."

¶8 In Lampton v. Johnson, 40 Okla. 492, 139 P. 526, and Liquid Carbonic Co. v. Rodman, 52 Okla. 211, 152 P. 439, this court considered the exception taken under the provisions of section 384, supra, and held that the party objecting to the decision must except at the time the decision is made, and that time may be given to reduce the exception to writing but not beyond the term. It is true those cases dealt with bills presented for allowance after the term had expired, but the language indicates that if a party wishes to reduce...