Archerd v. Ware
| Decision Date | 06 October 1925 |
| Docket Number | Case Number: 11181 |
| Citation | 242 P. 1043,1925 OK 798,115 Okla. 100 |
| Parties | ARCHERD v. WARE et al. |
| Court | Oklahoma Supreme Court |
¶0 Appeal and Error--Motion for New Trial--Necessity--Dismissal.
In a case tried to the court, where record evidence is introduced and supplemented by an agreement of counsel as to other facts, a motion for new trial and adverse action thereon by the trial court are necessary facts to be shown in order to confer jurisdiction on this court to review alleged error in the rendition of judgment therein. In such case, a sole assignment of error in the petition in error that "the court erred in sustaining defendant's motion to set aside the judgment of the plaintiff," presents nothing to this court for review.
Commissioners' Opinion, Division No. 1.
Error from District Court, Carter County; Thos. W. Champion, Judge.
Action by Henry Gail Archerd, by his legal guardian H. A. Archerd, against Phillip Ware and others. Judgment for defendants, and plaintiff brings error. Dismissed.
On motion by defendants to recall and quash a garnishee summons and to vacate an abstract of judgment filed in the district court, judgment was rendered in favor of the defendants quashing said garnishment and vacating said judgment. To reverse this action of the trial court the plaintiff brings error.
E. D. Slough, for plaintiff in error.
Ledbetter, Furman & Ledbetter, for defendants in error.
¶1 On November 9, 1914, Henry Gail Archerd, by his guardian, commenced his action in the justice court against the defendants, Phillip Ware, Louis Fulmore and Henry Carter, to recover the sum of $ 200 rents for the year 1914 on certain premises described, and for a landlord's attachment. There was judgment in the justice court in favor of the plaintiff and sustaining the attachment, and defendants Louis Fulmore and Henry Carter in due time filed their bond for appeal to the county court. Trial was had de novo in the county court March 5, 1915, resulting in a judgment in favor of the defendants and dissolving the attachment. There was no appeal from this judgment. It is not shown by the record whether Phillip Ware appeared and defended in the trial of the cause in the county court, nor is it disclosed that he did not appear. The journal entry of that judgment merely recites that "plaintiff and defendants appearing in person and by counsel." After the appeal bond had been filed by Fulmore and Carter for the purpose of appealing from the justice court to the county court and on December 29, 1914, plaintiff caused an abstract of the judgment in the justice court to be filed in the office of the court clerk and entered on the judgment docket. On January 19, 1918, Phillip Ware filed in the district court what was denominated a motion to vacate and set aside the abstract of judgment and to quash the garnishment issued thereon. This cause was numbered 2695 in the district court. Nearly two years later, and on January 5, 1920, there was a trial in district court, which resulted in a judgment in favor of Phillip Ware, vacating, setting aside, and holding for naught the abstract of...
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Lusk v. Humble Oil & Ref. Co.
...certain record evidence was submitted to the court, this case is brought within the rule announced in the case of Archerd v. Ware et al., 115 Okla. 100, 242 P. 1043, but an examination of that case presents a different state of facts to the case at bar. The record evidence in that case was ......
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Loyal Protective Ins. Co. v. Edwards
...in the instant case, the motion to dismiss the appeal should be sustained." ¶6 This same rule is followed in the case of Archerd v. Ware, 115 Okla. 100, 242 P. 1043, and in the case of Ingram v. Ingram, 122 Okla. 59, 250 P. 795. ¶7 The proceedings to vacate the judgment of the trial court c......
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Gassaway v. Skiveers
...upon and including such errors has been made by the party complaining and presented to the trial court and by it denied." Archerd v. Ware, 115 Okla. 100, 242 P. 1043. ¶8 The error assigned by defendant cannot be considered under the condition of the record. ¶9 Plaintiff gave notice of appea......
- Archerd v. Ware