Denny v. O'Rourke

• Decision Date: 10 September 1903
• Citation: 1903 OK 68,13 Okla. 256,74 P. 104
• Parties: ELWOOD DENNY v. WRIGHT & O'ROURKE, a partnership, AND F. H. WRIGHT AND J. J. O'ROURKE AND C. A. BORCHERS.
• Court: Oklahoma Supreme Court

1903 OK 68

74 P. 104

13 Okla. 256

ELWOOD DENNY v. WRIGHT & O'ROURKE, a partnership, AND F. H. WRIGHT AND J. J. O'ROURKE AND C. A. BORCHERS.

Supreme Court of Oklahoma

Decided: September 10, 1903

Syllabus

¶0 1. PETITION IN ERROR--Dismissed, When. Where a petition in error is filed in the supreme court, and there is not filed therewith a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original papers, process, files, and bill of exceptions or a case made, no question is presented for review.

2. EVIDENCE--When part of Record. Evidence is not a part of the record unless made so by case-made or bill of exceptions.

June, 1903, Decided

Error from the District Court of Canadian County; before C. F. Irwin, Trial Judge.

Goodwin & Reid, for plaintiff in error.

No appearance for defendants in error.

BEAUCHAMP, J.:

¶1 This purports to be an appeal from the judgment of the district court of Canadian county. Attached to the petition in error is what purports to be simply a stenographer's transcript of the evidence taken at the trial of the case. There is no copy of any of the pleadings or any judgment or final order of the trial court in the case, nor any motion for new trial shown. The record upon the conclusion of the testimony discloses that there was a motion made by defendants' counsel to dismiss as to the defendants Wright & O'Rourke. This motion was by the court sustained, to which ruling the plaintiff excepted and thus the record concludes.

¶2 Where a petition in error is filed in this court and there is not filed therewith a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified or the original papers, process, files, and bill of exceptions or case-made, no question is presented to this court for review. (Gardenhire v. Burdick, 7 Okla. 212, 54 P. 483; Sproat v. Durland, 7 Okla. 230, 54 P. 458; Commissioners v. Moon, 8 Okla. 205.)

¶3 Evidence is not a part of the record unless made so by case-made or bill of exceptions. (McMechan v. Christy, 3 Okla. 301, 41 P. 382: U. S. v. C. O. & G. R. R. Co., 3 Okla. 404.)

¶4 The appeal is dismissed, with costs to plaintiff in error.

¶5 Irwin, J., who presided in the court below, not sitting; Gillette, J., absent; all the other Justices concurring.