Grand Lodge Bhd. Trainmen v. Scott

Decision Date29 January 1929
Docket NumberCase Number: 19512
Citation135 Okla. 74,274 P. 27,1929 OK 39
PartiesGRAND LODGE BROTHERHOOD OF RAILROAD TRAINMEN v. SCOTT.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Appeal and Error--Record--Necessary that Case-Made Show Journal Entry of Judgment.

The case-made must affirmatively show that the judgment appealed from has been entered on the journal of the trial court.

2. Same--Sufficiency of Showing as to Journal Entry.

Where the case-made contains a recital that the following journal entry, setting forth the same, is filed and entered on the journal of the court, which journal entry shows to be approved by counsel for each party and signed by the trial judge, is incorporated in the case-made, and the case-made is duly served upon the opposing party and the opposing party does not move to strike out the purported journal entry upon the ground that the same is not entered upon the journal, and is served with notice of the time and place that the case-made will be presented for settling and signing and fails to appear at the time fixed for settlement and signing of case-made, and the trial judge approves the case-made and settles and signs the same as a true and correct case-made and orders it attested and filed by the court clerk, which is accordingly done, then such case-made becomes a part of the record in the case, and this court holds that such recitals in the case-made and the journal entry appearing therein and the signing and attesting by the trial judge and court clerk imports verity to the records and the same is sufficient to affirmatively show that the judgment appealed from has been entered on the journal of the trial court as required by law, and under such circumstances the burden is upon the party challenging the case-made or record to show in the manner authorized by statute that the same is not true and correct.

3. Appeal and Error--Scope of Review Where Brief Fails to Support Specifications of Error with Argument and Citation of Authority.

Where the brief of plaintiff in error does partially but not substantially comply with rule 26 of this court, "This court will not examine the record in search of prejudicial errors which are not clearly pointed out and insisted on in the brief of the complaining party, and it is not enough to assert in general terms that the ruling of the trial court is wrong, for on this the point will not be considered as having been made, but counsel should support the same with argument and citation of authority where possible. Brunson v. Emerson, 34 Okla. 211, 124 P. 979." Wyant v. Levy et al., 134 Okla. 39, 272 P. 851.

Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.

Action by Agnes Scott against the Grand Lodge of the Brotherhood of Railroad Trainmen. Judgment for plaintiff, and defendant brings error. Motion to dismiss appeal overruled.

Abernathy & Howell, for plaintiff in error.

E. C. Stanard, M. L. Hankins, and Leonard Carey, for defendant in error.

SWINDALL, J.

¶1 Motion is filed to dismiss this appeal because the case-made does not affirmatively show that the journal entry of judgment and in overruling of motion for new trial have been recorded in the journal of the superior court of Pottawatomie county, Okla., as required by law; and second, because the brief of plaintiff in error fails to present and argue the assignments of error separately, as required by rule 26 of this court, and argues in a general way that the court erred in rendering judgment for the plaintiff and against the defendant in the lower court on the evidence and the pleadings.

¶2 We have carefully examined the record in this case, and find that there is a recital in the case-made at page 244A:

"That thereafter on February 16, 1928, there was filed in said cause in said court, a certain journal entry of judgment, which said journal entry of judgment is of record upon the journal in said court under date of January 5th, 1928. Said journal entry as filed and said journal entry as the same appears and is of record upon the journal of said court is in words and figures as follows, to wit:"

¶3 Following this recital there appears a journal entry in the above-captioned action in due form of law approved by the attorneys for plaintiff and defendant and signed by the judge of the superior court.

¶4 The case-made containing this journal entry was duly served upon the attorneys of record for the plaintiff on the 20th day of March, 1928; thereafter notice was served upon the attorneys of record for the plaintiff that the case-made would be presented for settlement at Shawnee, Okla., on the 24th of April, 1928, at the hour of ten o'clock a. m. of said date, in the superior court room, or as soon thereafter as the same could be heard, and that the judge of said court would then and there be asked to settle and sign the same. Following this notice is the certificate of the judge of the superior court, in which he shows that the attorney for the plaintiff did not appear, and that he settled and allowed said case-made as a true and correct case-made in said cause and directed that it be attested and filed by the clerk of said court, and the attestation and filing marks appear upon said certificate. Numerous decisions have been rendered by this court holding that where a case-made does not affirmatively show that the judgment appealed from has been entered on the journal of the trial court, there is nothing before this court for review, and the appeal will be dismissed. Some of these cases are cited by defendant in error in this case, being Malaski v. Farris, 93 Okla. 81, 219 P. 323; Hilligoss v. Webb, 60 Okla. 89, 159 P. 291; Board of County Commissioners v. Vann, 60 Okla. 86, 159 P. 297; Butler v. Butler, 124 Okla. 245, 255 P. 580.

¶5 To this list may also be added Meadors v. Johnson, 27 Okla. 543, 117 P. 198; K. C., Mo. & O. Ry. Co. v. Fain, 34 Okla. 164, 124 P. 70; Mobley v. C., R. I. & P. Ry. Co., 44 Okla. 788, 145 P. 321; Schuck v. Moore, 48 Okla. 533, 150 P. 461; Graham v. Graham, 57 Okla. 672, 157 P. 740; Negin v. Picher Lbr. Co., 77 Okla. 285, 186 P. 205; Alexander v. Phelan, 97 Okla. 272, 222 P. 510; City of Tulsa v. Kay, 124 Okla. 243, 255 P. 684.

¶6 However, in each of these cases the court found that there was no journal entry of judgment disclosed by the case-made, and that the mere recital in the case-made that such a judgment had been entered did not comply with the laws of this state; that the case-made must affirmatively show that the same was entered upon the journal. We still adhere to the rule that the case-made must affirmatively show that the judgment appealed from has been entered on the journal of the trial court. But where a case-made recites the fact that the judgment set forth is upon the journal of the court and the case-made containing such recital and journal entry is served upon opposing counsel and they fail to offer any objections to the case-made or fail to move or strike out any of the instruments set forth therein upon the grounds that they are not properly inserted therein, and are duly served with notice of the time and place at which such case-made is to be presented for settlement and fail to object to any of the instruments incorporated therein and fail to move to strike any therefrom, and the trial judge certifies that the foregoing record is a true and correct case-made and orders the same to be attested and filed as a case-made in said cause, and the same is accordingly done, then we hold the record does affirmatively show that...

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6 cases
  • Fed. Sur. Co. v. Little, Case Number: 19846
    • United States
    • Oklahoma Supreme Court
    • October 13, 1931
    ...for the reason the same does not appear of record in the court below. ¶33 This court, in the case of Grand Lodge Brotherhood of Railroad Trainmen v. Scott, 135 Okla. 74, 274 P. 27, in the first paragraph of the syllabus, said: "The case-made must affirmatively show that the judgment appeale......
  • Indian Territory Illuminating Oil Co. v. Ray
    • United States
    • Oklahoma Supreme Court
    • November 24, 1931
    ...to run the court. Morris v. Caulk, 44 Okla. 342. 144 P. 623."That case was cited with approval in Grand Lodge Brotherhood of Railroad Trainmen v. Scott, 135 Okla. 74, 274 P. 27. ¶20 While the State Industrial Commission is not a court of record, section 7315 provides it shall keep records a......
  • Powell v. Sandefur
    • United States
    • Oklahoma Supreme Court
    • October 28, 1941
    ...the certificate of the court clerk recites that it is. In view of the stipulation, this is sufficient. Grand Lodge Brotherhood of Railroad Trainmen v. Scott, 135 Okla. 74, 274 P. 27. The motion to dismiss is denied. ¶5 2. On the merits, the sole contention of defendant is that the judgment ......
  • Kenney v. Neumeyer
    • United States
    • Oklahoma Supreme Court
    • March 5, 1935
    ... ... White, 106 Okla. 19, 232 P. 850, and Grand Lodge of Brotherhood of R.R. Trainmen v. Scott, 135 Okla ... ...
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