Charles v. Prentice
| Decision Date | 11 January 1923 |
| Docket Number | Case Number: 12743,Case Number: 12744 |
| Parties | CHARLES v. PRENTICE et al. (Two cases). |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Petition in Error--Amendment by New Assignments of Error.
An assignment of error to the effect that the court below erred in overruling a motion for a new trial is a new and distinct assignment of error; and a petition in error in the Supreme Court cannot be amended by incorporating such assignment therein after the statutory time for perfecting an appeal has expired.
2. Appeal and Error--"Record Proper"--Motions and Rulings--Review.
Motions presented in the trial court, the rulings thereon, and exceptions are not properly part of the record, and can only be preserved and presented for review on appeal by incorporating the same into a bill of exceptions or case-made. The record proper in a civil action consists of the petition, answer, reply, demurrers, process, rulings, orders, and judgment; and incorporating motions, affidavits, or other papers into a transcript will not constitute them a part of the record unless made so by a bill of exceptions. Motions and proceedings which are not part of the record proper can only be presented for review by incorporating them into a case-made, or by preserving them by bill of exceptions and embracing them in the transcript.
3. Same--Review on Transcript--Evidence.
Where the errors assigned are such that, in order to review them, it would be necessary to examine the evidence introduced in the trial court, this court cannot review the same upon a transcript of the record.
Error from District Court, Creek County; Redmond S. Cole, Assigned Judge.
Actions by Sophia Charles and Ellis Buffington Charles, minors, by guardian, against F. D. Prentice and others. Judgment for defendants, and plaintiffs bring error. Affirmed.
Robert F. Blair, A. J. Ward, Keaton, Wells & Johnston, and Stuart, Sharp & Cruce (John G. Ellinghausen and M. S. Singleton, of counsel), for plaintiffs in error.
Breckinridge, Bostick & Daniel, G. C. Spillers, McDougal, Lytle, Allen & Pryor, Blakeney & Maxey, Prentice, Bell & Prentice, and Ledbetter, Stuart, Bell & Ledbetter, for defendants in error.
¶1 Sophia Charles, minor, by Robert W. Thomas, guardian, plaintiff in error in cause No. 12743, and Ellis Buffington Charles, minor, by Robert W. Thomas, guardian, plaintiff in error in cause No. 12744, respectively, commenced an action in the district court of Creek county, Okla., against F. D. Prentice, Josephine B. Prentice, P. S. Johnson, and J. White Johnson. In which actions the plaintiffs sought to vacate, set aside, and hold for naught certain proceedings of the county court of Creek county, Okla., in which certain lands belonging to the plaintiffs in error herein were sold at public auction to the highest and best bidder, at which sale the defendant in error P. S. Johnson became the purchaser.
¶2 In the respective petitions of the plaintiffs it is alleged, among other things, that defendant in error P. S. Johnson and the defendants in error F. D. Prentice and J. B. Prentice and defendant in error J. White Johnson entered into a conspiracy to cheat and defraud the said plaintiff herein out of the title to the real estate involved in controversy in this cause; and that by means of such fraud and collusion plaintiff alleges that the defendants in error, P. S. Johnson, F. D. Prentice, J. B. Prentice, and J. White Johnson, succeeded in defrauding the said plaintiffs out of their said lands; and that thereafter oil was discovered on said land in large quantities, and that the said defendants in error, P. S. Johnson, J. White Johnson, F. D. Prentice, and J. B. Prentice, had converted to their own use the rents, issues, and profits from the said land, including the oil produced from said land, of the reasonable value of $ 1,000,000, and sought to recover possession of the land, to cancel the deed of conveyance to defendant in error P. S. Johnson, and to recover damages against the defendants in error, P. S. Johnson, J. White Johnson, F. D. Prentice, and J. B. Prentice, in the sum of $ 1,000,000.
¶3 The defendants filed separate answers. The causes proceeded to the trial to the court, and at the conclusion thereof the court rendered judgment that the plaintiffs take nothing; that the title of J. B. Prentice in and to the lands involved be quieted in the said J. B. Prentice; that the plaintiffs and all persons claiming by, through, and under them be forever barred of holding or asserting any right, title, or claim in and to said lands; that the defendants, F. D. Prentice, P. S. Johnson, J. White Johnson, and J. B. Prentice, have judgment for their costs therein expended.
¶4 The plaintiffs respectively filed timely motions for new trials, which were overruled by the court; thereafter they respectively commenced proceedings in error in this court by filing their respective petitions in error with a purported case-made attached, and thereafter by order of this court the above-entitled and numbered causes were consolidated, and since said order of consolidation said causes have been orally argued and briefed by counsel accordingly. The defendants in error respectively filed motions to dismiss the appeals of said causes, all of which motions have heretofore been by this court overruled.
¶5 The petitions in error of the plaintiffs do not assign as error the overruling by the trial court of the plaintiffs' motions for a new trial. The petitions in error have attached thereto copies of cases-made, respectively, properly certified. The order of the trial court overruling motions for a new trial was made on April 30, 1921. The petitions in error were filed in this court within six months after said date, to wit, on October 20, 1921. The record discloses that the attempts to appeal in these cases were by case-made as provided in section 5238, Rev. Laws 1910, and not by bills of exceptions; and that there was no attempt to amend the petitions in error within six months from the overruling by the trial court of the motions for a new trial by having incorporated therein that the trial court erred in overruling the motions for a new trial, and no such amendment was ever made. And the same cannot now be made. M., O. & G. Ry. Co. v. McClellan, 35 Okla. 609, 130 P. 916, and the authorities therein cited. Such has been the universal holding of this court.
¶6 In this state of the record, this court is without authority to review any alleged errors of the trial court occurring during the progress of the trial of said causes. Brooks v. Watkins Medical Co., 81 Okla. 82, 196 P. 956; Aultman & Taylor Machinery Co. v. Fuss, 86 Okla. 168, 207 P. 308; Stark Bros. v. Glaser, 19 Okla. 502, 91 P. 1040; Stinchcomb v. Myers, 28 Okla. 597, 115 P. 602; Garner v. Scott, 28 Okla. 646, 115 P. 789; Gill v. Haynes, 28 Okla. 656, 115 P. 790; Eggleston v. Williams, 30 Okla. 129, 120 P. 944; Brown v. Western Casket Co., 30 Okla. 144, 120 P. 1001; James v. Jackson, 30 Okla. 190, 120 P. 288; Baker v. Tate, 41 Okla. 353, 138 P. 171; Ledgerwood v. State, 6 Okla. Crim. 105, 116 P. 202; Crump v. State, 7 Okla. Crim. 535, 124 P. 632; Hodges v. Alexander, 44 Okla. 598, 145 P. 809.
¶7 In Stonebraker-Zea Cattle Co. v. Hilton, 34 Okla. 225, 124 P. 1062, paragraphs 1 and 2 of the syllabus are as follows:
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