Bruce v. Casey-Swasey Co.
| Decision Date | 13 January 1904 |
| Citation | 75 P. 280,13 Okla. 554,1904 OK 7 |
| Parties | BRUCE v. CASEY-SWASEY CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where a case is presented to the Supreme Court on appeal upon a transcript of the record of the court below, the certificate thereto must be full and complete, and specifically show that the record contains a full, true, and complete transcript of the record.
2. A bill of exceptions never becomes a part of a record until it is filed in the trial court, and, unless filed, it cannot be copied into a transcript, and presents no error to this court.
3. A reference in a bill of exceptions to an affidavit as "Exhibit A," and not otherwise incorporated, is not sufficient to make it a part of the bill of exceptions. It must be annexed to the bill, and be embodied in it, in order to be a part of it.
4. Affidavits used on a motion, to become a part of the record in such a way as to enable the Supreme Court to review the same, must be made part of the record by bill of exceptions or incorporated into the case made.
Error from Probate Court, Kiowa County; Harris Finley, Judge.
Action by the Casey-Swasey Company against William E. Bruce. Judgment for plaintiff. Defendant brings error. Affirmed.
Madaris & McKeene, for plaintiff in error.
As shown by the plaintiff's brief, this was an action brought in the probate court of Kiowa county. The original action was brought by the defendant in error, the Casey-Swasey Company, against D. C. Bruce, to recover the sum of $412. An attachment was issued, and levied upon certain personal property, which was claimed by the plaintiff in error as his property. The defendant, D. C. Bruce, allowed the action to go by default. The plaintiff in error made a motion to discharge the attached property from the writ alleging as grounds therefor that he was the owner thereof.
The case is brought to this court upon what purports to be a transcript of the record. There is attached to this record what seems to have been intended as a bill of exceptions together with what purports to be copies of other papers including motions, pleadings, affidavits, judgments, etc. That part of the record intended for the bill of exceptions contains the oral evidence which seems to have been introduced on the trial. Other evidence, in the form of affidavits, is referred to as exhibits, but not included in the bill of exceptions. Nowhere in the record is the purported bill of exceptions shown to have been filed in the probate court. If there ever was a bill of exceptions allowed, signed, and filed, there is no transcript of the same brought to this court. The paper purporting to be a bill of exceptions, instead of being a transcript, is, if anything, what was intended as the original bill of exceptions allowed by the probate court, with his seal attached, but never filed so as to make it a part of the record. The certificate of the probate judge attached at the end of the record is sufficient in form for a certificate to a transcript, but, the record containing matters that can only be preserved and brought to this court by bill of exceptions or case-made, such matters must be excluded, and cannot be considered by this court. This leaves the transcript as containing only the...
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