Divine v. Harmon
| Decision Date | 12 May 1909 |
| Citation | 101 P. 1125,23 Okla. 901,1909 OK 92 |
| Parties | DIVINE v. HARMON et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A proceeding in error by petition in error and case-made, where neither the original case-made nor a certified copy thereof is filed with the petition in error, presents nothing for review.
[Ed Note.-For other cases, see Appeal and Error, Dec. Dig. § 614 [*]]
On Motion Relating to Pleadings.
An order overruling a motion asking permission to withdraw an amended petition which has already been stricken from the files is not an order from which a proceeding in error lies.
[Ed Note.-For other cases, see Appeal and Error, Dec. Dig. § 103 [*]]
Error from District Court, Muskogee County.
Action by Ollie Divine against Bent T. Harmon and others. Judgment for defendants, and plaintiff brings error. Dismissed.
Williams & Williams, for plaintiff in error.
Chas. Bagg, for defendants in error.
A motion to dismiss upon several grounds has been filed in this action. One of the grounds urged is that the original case-made or a certified copy thereof has not been filed with the petition in error. This proceeding in error is from the district court of Muskogee county by petition and case-made. Section 4739, Wilson's Rev. & Ann. St. Oklahoma 1903, provides that in all proceedings in error plaintiff in error shall attach to and file with his petition in error the original case-made filed in the court below, or a certified transcript of the record of said cause. Section 4741 provides that, when the case-made has been signed and settled by the judge of the court, the same shall be filed with the papers in the case, and a certified copy thereof shall be filed with the petition in error. These sections of the statutes were adopted by the territorial Legislature by the same act, and, construing them together so as to give each force and effect, they authorize a proceeding in error by a petition in error with the original case-made or a certified copy thereof attached thereto.
Plaintiff in error has attempted to perfect his proceeding in error by filing a petition in error and what purports to be a copy of the case-made, which is neither the original nor a certified copy of the original. The Legislature having prescribed the method by which a proceeding in error or appeal may be had, such method must be followed, and the court cannot disregard it. It follows that nothing is presented by the petition in error in this case that can be reviewed by the court; but we should not be disposed to dismiss this action without giving plaintiff in error an opportunity to have the purported copy of the case-made, attached to his petition, certified by the clerk of the trial court if it did not appear from such purported copy of the case-made that the motion to dismiss will have to be sustained upon another ground.
It is also urged in the motion that the order of the court from which this proceeding is taken is not an order that the statute authorizes an appeal to be taken therefrom. In order to determine this contention, it will be necessary for us to review somewhat in detail the proceedings in the trial court. This action was begun in the trial court by plaintiff filing therein her petition for partition of certain real estate, to which defendant demurred, and the court overruled defendant's demurrer. Thereupon defendant filed an answer and both parties filed an agreed statement of facts, upon which pleadings and agreed statement of facts the case went to trial and resulted in a judgment of the court dismissing the action without prejudice, but on the same day such judgment was rendered a motion was filed by plaintiff and sustained by the court, setting aside the order of the court dismissing the action, and thereafter plaintiff was permitted to file in the action her amended petition in ejectment praying for judgment for possession of the premises...
To continue reading
Request your trial