Black v. Kuhn

• Decision Date: 30 July 1897
• Citation: 50 P. 80,6 Okla. 87,1897 OK 51
• Parties: BLACK v. KUHN.
• Court: Oklahoma Supreme Court

50 P. 80

6 Okla. 87, 1897 OK 51

BLACK v. KUHN.

Supreme Court of Oklahoma

July 30, 1897

Syllabus by the Court.

The Statutes of 1893 do not include a motion as part of the pleadings in the cause, and make no provision for bringing here for review an order made upon a motion to dismiss an appeal in the district court by a transcript of the record.

Error from district court, Kay county; before Justice A. G. C Bierer.

Action by Frank Kuhn against Robert Black. Judgment for defendant. Plaintiff brings error. Dismissed.

Herod Widmer & Overstreet, for plaintiff in error.

W. B McCoon, for defendant in error.

McATEE J.

This was an action on account in the probate court of Kay county in which judgment was rendered in behalf of the defendant and for costs, and appeal taken to the district court by the plaintiff in error. Thereafter, upon motion of the defendant "to dismiss the appeal from the probate court in the above-entitled cause for the reason that no appeal lies in such cases to this court," the motion to dismiss the appeal was sustained, to which the plaintiff excepted, and took "sixty days to present case-made." Assignments of error were that (1) the court erred in sustaining the motion of defendant to dismiss the appeal, and (2) in rendering judgment against the plaintiff in error. The plaintiff brought the case to this court upon a transcript certified by the clerk of the district court to be "a true and complete transcript of all the papers, pleadings, process, and orders of the court, as the same appears on file and of record in my office." The case was filed in this court on the 10th day of January, 1896, and thereafter, upon the 12th day of May, 1896, the defendant in error filed his motion to dismiss the petition in error, for the reason that "it does not conform to the requirements of the Statutes of Oklahoma, in that no proper certificate is filed with the transcript thereto annexed, and (2) that it does not show that the court has any jurisdiction to entertain the cause, and that the trial court committed error in its acts in connection with said cause." The relief sought by the plaintiff in error is the review of an order of the district court, upon the motion of the defendant in error, "to dismiss an appeal from the probate court in the above-entitled cause for the reason that no appeal lies in such cases to this court." An order of the court upon a motion cannot be brought to ...