Alexander v. First Nat. Bank
| Decision Date | 14 May 1929 |
| Docket Number | 20105. |
| Citation | 277 P. 667,136 Okla. 251,1929 OK 197 |
| Parties | ALEXANDER v. FIRST NAT. BANK OF DUNCAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a case-made does not contain a positive averment by way of a recital that it contains all of the proceedings and evidence or other matters in the action as may be necessary to present the error complained of to the Supreme court, the same is insufficient and without force.
It is not necessary that the entire record be included in the case-made, but so much thereof as is required by section 784 C. O. S. 1921, must be included therein, and there must be an averment therein of the inclusion thereof.
An assignment of error which requires for its determination an examination of the proceedings at the trial will not be reviewed, where the record is certified as a transcript and is insufficient to constitute a case-made.
A mere recitation in a court clerk's minutes that a motion for new trial was overruled does not constitute a judgment or order overruling motion for new trial; and where no order overruling motion for new trial appears in the record and a motion for new trial is necessary, this court has no jurisdiction to review the case on appeal.
This court is authorized by section 786, C. O. S. 1921, to permit the withdrawal of the record or case-made for the purpose of including therein matter omitted therefrom and which is of record in the court from which the appeal was taken, but such a withdrawal will be permitted only where it is made to appear that the matter sought to be included in the record or case-made is of record in the court from which the appeal was taken.
Where a case-made is not served upon a necessary party and there is no acceptance or waiver of service thereof, an appeal based thereon will be dismissed.
Appeal from District Court, Stephens County; M. W. Pugh, Judge.
Action between D. D. Alexander and the First National Bank of Duncan. From the judgment, the former appeals. On motion to dismiss the appeal. Appeal dismissed.
H. B Lockett, of Comanche, for plaintiff in error.
Bond & Bond, of Duncan, for defendant in error.
This case is before this court on motion of the defendant in error to dismiss the appeal.
The record is certified by the court clerk as a transcript. The errors complained of are not such as may be reviewed on a transcript. Charles v. Prentice, 88 Okl. 246, 212 P 585.
The record contains no averment by way of recital that it contains all the proceedings and evidence or other matter in the action necessary to present the error complained of to the Supreme Court. Such an averment is necessary in an appeal by case-made. Briggs v. Kinzer, 59 Okl. 49, 158 P 447, and cases therein cited. It is not necessary that the entire record be included in the case-made, but so much thereof as is required by section 784, C. O. S. 1921, must be included therein, and there must be an averment therein of the inclusion thereof.
The record contains a court clerk's minute that the motion for new trial was overruled and notice given in open court of an appeal, and 90, 10, and 5 to make and serve a case-made but this does not appear to have been shown in the journal of the court. Plaintiff in error files a motion to remand the case-made for correction. This motion was resisted by the defendant in error, who attached an affidavit of the court clerk; but it nowhere appears from the record that the order overruling motion for new trial and order extending time to make and...
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