Creek Realty Co. v. City of Muskogee, Case Number: 55005501

CourtSupreme Court of Oklahoma
Writing for the CourtSHARP, J.
Citation49 Okla. 413,153 P. 180,1915 OK 949
PartiesCREEK REALTY CO. v. CITY OF MUSKOGEE et al. SHAW v. SAME.
Decision Date23 November 1915
Docket NumberCase Number: 55005501

1915 OK 949
153 P. 180
49 Okla. 413

CREEK REALTY CO.
v.
CITY OF MUSKOGEE et al.


SHAW
v.
SAME.

Case Number: 55005501

Supreme Court of Oklahoma

Decided: November 23, 1915


Syllabus

¶0 1. APPEAL AND ERROR--Case-Made--Filing of Certified Copy--Right. A proceeding in error filed in this court, wherein it is sought to review a judgment of a lower court rendered since the adoption of Revised Laws 1910, on May 16, 1913, prosecuted by case-made, and not by a transcript of the record, can only be brought by filing with the petition in error the original case-made filed in the court below, and not by filing a certified copy thereof, as was formerly permissible under section 6074, Comp. Laws 1909.

2. SAME--Presentation for Review--Filing of Original Case-Made--Dismissal. As provided in section 5240, Rev. Laws 1910, "in all actions hereafter instituted by petition in error in the Supreme * * * Court, the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court be low, or a certified transcript of the record of said court." Where this is not done within the time fixed by statute, this court is without jurisdiction to review the judgment complained of.

3. SAME--Case-Made--Correction of Error. A plaintiff in error who seeks the reversal of a judgment rendered since the going into effect of the Revised Laws of 1910, on May 16, 1913, but who attaches to the petition in error a certified copy, instead of the original case-made, as provided for in section 5240, Rev. Laws 1910, cannot, more than two years from the rendition of such judgment, amend by substituting in this court the original for the certified copy of the case. Nor does the fact that counsel for defendants in error have consented that the same may be done affect the rule. Jurisdiction cannot be thus conferred.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Suits by the Creek Realty Company and by John R. Shaw against the City of Muskogee, City Clerk of the City of Muskogee, and County Treasurer and Board of County Commissioners of Muskogee County. From an order in each of said cases sustaining a demurrer to the first, second, and fourth paragraphs of plaintiffs' petitions, plaintiffs bring error. Dismissed.

Charles A. Cook, for plaintiffs in error.

S. V. O'Hara, James C. Davis, and W. E. Disney, for defendants in error.

W. L. Cunningham, amicus curiae.

SHARP, J.

¶1 On the 19th day of April, 1913, plaintiffs instituted their separate suits in the superior court of Muskogee county to enjoin the levy and collection of taxes upon property within street improvement district No. 129 of the city of Muskogee, which taxes were, at the time of the institution of plaintiffs' suits, about to be levied and collected to pay for said street improvement. Plaintiffs' petitions each set forth five separate causes of action. In each case separate demurrers thereto were filed by the defendants, the county treasurer and board of county commissioners,...

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4 practice notes
  • In re Estate, Case Number: 8224
    • United States
    • Supreme Court of Oklahoma
    • December 12, 1916
    ...a case-made could not be substituted for a copy thereof after the time for appeal had expired ( Creek Realty Co. v. City of Muskogee, 49 Okla. 413, 153 P. 180); but the particular question here involved appears to be now before us for the first time since the passage of the statute above qu......
  • Skelly Oil Co. v. Globe Oil Co., Case Number: 12771
    • United States
    • Supreme Court of Oklahoma
    • July 18, 1922
    ...the matter presented in the case-made? This question is fully decided by this court in the case of Creek Realty Co. v. City of Muskogee, 49 Okla. 413, 153 P. 180, and cases therein cited. The appeal by transcript presents no question for review to this court, and the amended petition in err......
  • Barrick v. Smith, Case Number: 9531
    • United States
    • Supreme Court of Oklahoma
    • January 13, 1920
    ...consent of parties is of no avail." Citing in support thereof the opinions of this court, supra, and Creek Realty Co. v. City of Muskogee, 49 Okla. 413, 153 P. 180, American Nat'l Bank v. Mergenthaler Co., 31 Okla. 533, 122 P. 507, and the numerous cases therein cited. ¶12 We are clearly of......
  • Eveland v. Campbell, Case Number: 18874
    • United States
    • Supreme Court of Oklahoma
    • January 31, 1928
    ...of the record of said court. This court in construing the language of this section in the case of Creek Realty Co. v. City of Muskogee, 49 Okla. 413, 153 P. 180, said, "this statute was under review in Messmore v. Given, 40 Okla. 369, 138 P. 153, and Oklahoma Land Co. v. Thomas, 43 Okla. 21......
4 cases
  • In re Estate, Case Number: 8224
    • United States
    • Supreme Court of Oklahoma
    • December 12, 1916
    ...a case-made could not be substituted for a copy thereof after the time for appeal had expired ( Creek Realty Co. v. City of Muskogee, 49 Okla. 413, 153 P. 180); but the particular question here involved appears to be now before us for the first time since the passage of the statute above qu......
  • Skelly Oil Co. v. Globe Oil Co., Case Number: 12771
    • United States
    • Supreme Court of Oklahoma
    • July 18, 1922
    ...the matter presented in the case-made? This question is fully decided by this court in the case of Creek Realty Co. v. City of Muskogee, 49 Okla. 413, 153 P. 180, and cases therein cited. The appeal by transcript presents no question for review to this court, and the amended petition in err......
  • Barrick v. Smith, Case Number: 9531
    • United States
    • Supreme Court of Oklahoma
    • January 13, 1920
    ...consent of parties is of no avail." Citing in support thereof the opinions of this court, supra, and Creek Realty Co. v. City of Muskogee, 49 Okla. 413, 153 P. 180, American Nat'l Bank v. Mergenthaler Co., 31 Okla. 533, 122 P. 507, and the numerous cases therein cited. ¶12 We are clearly of......
  • Eveland v. Campbell, Case Number: 18874
    • United States
    • Supreme Court of Oklahoma
    • January 31, 1928
    ...of the record of said court. This court in construing the language of this section in the case of Creek Realty Co. v. City of Muskogee, 49 Okla. 413, 153 P. 180, said, "this statute was under review in Messmore v. Given, 40 Okla. 369, 138 P. 153, and Oklahoma Land Co. v. Thomas, 43 Okla. 21......

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