Gwinnup v. Griffins

• Decision Date: 12 July 1910
• Docket Number: Case Number: 1488
• Citation: 113 P. 909,26 Okla. 866,1910 OK 221
• Parties: GWINNUP et al. v. GRIFFINS et al.
• Court: Oklahoma Supreme Court

1910 OK 221

113 P. 909

26 Okla. 866

GWINNUP et al. v. GRIFFINS et al.

Case Number: 1488

Supreme Court of Oklahoma

Decided: July 12, 1910

Syllabus

¶0 1. APPEAL AND ERROR--Cases Pending in Ind. Ter. Courts--Procedure. Under the procedure of the Territory of Oklahoma in force in the state by virtue of sec. 2 of the Schedule to the Constitution, a proceeding in error may be maintained in this court by any proper party to review the action of the trial court as to cases pending in the United States Court of the Indian Territory at the time of the erection of the state, and thereafter, having been transferred to the proper state court, determined.

2. APPEAL AND ERROR--Record--Case- Made. A case-made is not a part of the record of the trial court.

(a) A case-made becomes a part of the record in a proceeding in error, its settling, certification, attesting, etc., being preliminary to the commencement of such proceeding in the appellate court.

Error from the District Court, Muskogee County; Jno. H. King, Trial Judge.

Action between Harry G. Gwinnup and another and J. F. Griffins and others. Motion to dismiss appeal overruled.

W. T. Hutchings, for plaintiffs in error.

W. W. Noffsinger and F. L. Martin, for defendants in error.

WILLIAMS, J.

¶1 On the 27th day of February, 1907, the plaintiffs in error, Harry G. Gwinnup and James L. Allen, as plaintiffs, commenced an action in the United States Court for the Western District of the Indian Territory, sitting at Muskogee, against the defendants in error, J. F. Griffins, James Robinette, W. A. Crosby and T. F. Crosby, partners, under the firm name of Crosby & Crosby, and F. L. Martin and C. W. Turner, as defendants, by filing their complaint in ejectment with the clerk of said court, upon which summons was issued and returned, on the 21st day of March, 1907, as served on each of said defendants. The cause being at issue, on the 10th day of March, 1909, after trial, verdict was returned by a jury in favor of the plaintiffs upon which judgment was rendered in their favor. On March 10, 1909, motion for new trial on the several statutory grounds was filed. On the 27th day of March, 1909, said motion was overruled. On the same day, the defendants demanded a second trial under sec. 4792 of Wilson's Rev. & Ann. St. 1903, which was granted, the plaintiffs excepting. A petition in error with case-made attached having been lodged in this court on March 10, 1910, the action of the lower court is sought to be reviewed. The defendants in error have moved that said proceeding be dismissed on the ground that the laws in force in the Indian Territory at the time of the erection of the state relative to appeals control exclusively, and that a review cannot be had by means of petition in error with case-made, but that an appeal or writ of error in such case must be prosecuted within six months after the judgment is rendered. It has been settled by this court that as to cases determined in the United States District Court of the Indian Territory prior to the erection of the state, the appellate procedure obtaining at that time in that jurisdiction applied both as to form and time, whether the appeal was taken prior or subsequent to the admission of the state. Chouteau et al. v. Chouteau, 25 Okla. 426, 106 P. 854, and authorities therein cited.

¶2 Sec. 6069, Comp. Laws Okla. 1909 (St. Okla. Ter. 1893, sec. 4439), as continued in force in this state, provides:

"The proceedings to obtain such reversal, vacation or modification, shall be by petition in error, filed in the Supreme Court, setting forth the errors complained of; and thereupon a summons shall issue and be served, or publication made, as in the commencement of an action."

¶3 Sec. 6070, Comp. Laws Okla. 1909 (St. Okla. Ter. 1893, sec. 4440), provides:

"The summons mentioned in the last section shall, upon the written praecipe of the plaintiff in error or his attorney, be issued by the clerk of the court in which the petition is filed, to the sheriff of any county," etc.

¶4 By the Oklahoma procedure, in civil cases, there is but one proceeding or action to review the actions of a trial court and that is a...