Green v. Inc.
| Decision Date | 26 January 1909 |
| Docket Number | Case Number: 89 |
| Citation | 99 P. 906,23 Okla. 128,1909 OK 22 |
| Parties | GREEN et al. v. INCORPORATED TOWN OF YEAGER. |
| Court | Oklahoma Supreme Court |
¶0 APPEAL AND ERROR--Record--Reservation of Questions. Motions presented in the trial court, the rulings thereon, and exceptions thereto are not properly a part of the record, and can only be presented and preserved for review on appeal to the Supreme Court by incorporating the same in the bill of exceptions or case-made.
Error from District Court. Hughes County; John Caruthers, Judge.
Action by J. O. Green and others against the Incorporated Town of Yeager. Judgment for defendant, and plaintiffs bring error. Dismissed.
This is an action for injunction brought in the district court of Hughes county by plaintiffs in error, as resident taxpayers of the town of Yeager in said county, to enjoin defendant in error and its officers from collecting a tax levy made upon the property of plaintiffs in error for the year 1907. In the absence of the judge of the district court from the county, application was made to the county judge for a temporary injunction, which was by him granted. A motion was filed by defendant in error to dissolve the temporary injunction, and the judge of the district court upon hearing said motion in chambers sustained the same and dissolved the temporary injunction. From this order an appeal has been taken. The appeal has been made by filing in this court a petition in error with a transcript. No case-made is attached to the petition in error. A motion to dismiss has been filed upon the ground that no case-made has been filed with the petition in error, and that the matters complained of by plaintiffs in error in their petition cannot be presented to this court by petition and transcript of the record. Nothing is complained of in the petition in error except the action of the court in sustaining the motion to dissolve the temporary injunction. Plaintiffs in error have filed an answer to the motion, and in their answer rely upon the case of L., L. & G. Ry. Co. v. Douglas County, 18 Kan. 169.
Langston, Hicks & O'Niell, for plaintiffs in error.
Frank L. Warren and C. W. Miller, for defendant in error.
¶1 Under our statute, two methods of appeal are provided. Section 4738 of Wilson's Revised and Annotated Statutes of 1903 provides that "the plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original case-made as hereinafter provided, or a copy thereof." Under this section, the appeal may be taken by petition and a transcript or by petition and case-made. In the case at bar, the appeal is taken by the former method, and the sole question presented by the motion to dismiss is whether a motion to dissolve a temporary injunction and the order of the court thereon is a part of the record and may be presented by petition and transcript. In the case cited, supra, by plaintiffs in error, it seems to have been held that a motion to require plaintiffs to plead more specifically and the action of the court thereon is a part of the record and may be presented by transcript; but the rule in this jurisdiction has long been established to the contrary by the numerous decisions of the Supreme Court of the territory of Oklahoma. McMechan v. Christy, 3...
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