Davis v. Lammers

• Decision Date: 09 March 1909
• Citation: 100 P. 514,23 Okla. 338,1909 OK 48
• Parties: DAVIS v. LAMMERS et al.
• Court: Oklahoma Supreme Court

100 P. 514

23 Okla. 338, 1909 OK 48

DAVIS v. LAMMERS et al.

Supreme Court of Oklahoma

March 9, 1909

Error from the United States Court for the Western District of the Indian Territory, at Muskogee.

Action by Charles Lammers and others against Sam T. Davis. Judgment for plaintiffs, and defendant brings error. Dismissed.

A motion to vacate and modify a judgment, not being preserved in the transcript by bill of exceptions, so as to make it a part of the record, cannot be considered.

Mont T Sharp, for plaintiff in error.

Charles Bagg, for defendants in error.

PER CURIAM.

On March 24, 1906, Charles Lammers and William Lowe, defendants in error, plaintiffs below, sued S. T. Davis, plaintiff in error, defendant below, in the United States Court for the Indian Territory, Western District, at Muskogee, for $507 balance due on a building contract, and for $191, the alleged value of certain extra work done by them on the building over and above that stipulated to be performed in said contract. After answer filed, and reply, there was trial to a jury, and verdict for plaintiffs for $507, and after motion for a new trial was filed, and overruled, defendant was given 60 days from July 17, 1908, in which to make and serve a case-made for this court. On December 7, 1908, came on to be heard a motion by defendant to correct the record, which the court sustained, in effect holding a certain entry of judgment on the verdict, made on the day of its rendition, void, and approving as the judgment of the court a certain entry, made November 20, 1908, in favor of plaintiffs for said amount and costs. On December 12, 1908, defendant filed a motion to vacate said judgment and for judgment nunc pro tunc, and among other things alleged therein that the special judge who tried the cause, in overruling his motion for a new trial required plaintiffs to remit $165 on said verdict, which he says was done, and a journal entry to that effect then and there prepared and signed by said judge, which defendant later presented to the clerk of the said court, who failed and refused to recognize the same, but entered said judgment of November 20, 1908, for the full amount of said verdict and filed as an exhibit thereto said alleged journal entry and prayed that judgment be entered accordingly, which said motion the court overruled, to which defendant excepted, and the same is now before us for review on petition in error and...