In re Estate
| Citation | 161 P. 801,62 Okla. 33,1916 OK 1019 |
| Decision Date | 12 December 1916 |
| Docket Number | Case Number: 8224 |
| Parties | In re COMBS' ESTATE. |
| Court | Supreme Court of Oklahoma |
1916 OK 1019
161 P. 801
62 Okla. 33
In re COMBS' ESTATE.
Case Number: 8224
Supreme Court of Oklahoma
Decided: December 12, 1916
¶0 1. Appeal and Error--Record--Authentication--Amendment.
A certificate of the clerk of the district court to a transcript, which is attached to a petition in error and filed in this court, within the time limited for appeal, may be amended upon order of this court made prior to final decision, but after the time for filing such appeal has expired.
2. Appeal and Error--Appellate Jurisdiction--Appearance--Effect.
Jurisdiction is not conferred upon this court by a general appearance of the sole defendant in error, made after the time for filing an appeal has expired.
3. Appeal and Error--Summons in Error--Designation of Court.
A summons in error which described the judgment appealed from as rendered in the county court, when it should properly have described such judgment as rendered in the district court, will not be held so defective as to work a dismissal of the cause, unless it appears that the defendant in error so summoned was deceived thereby to his prejudice.
4. Appeal and Error--Record--What Constitutes--Evidence.
Evidence taken in the county court upon a petition to admit a will to probate, which is not introduced in evidence in the district court, by stipulation or otherwise, upon a trial of the issues de novo upon appeal to that court, is not part of the record in the district court, and will be stricken upon motion, from a transcript of the record of such district court presented here upon appeal.
5. Same--Motion for New Trial.
A motion for new trial, not made a part of the record by bill of exceptions, is not a proper part of a transcript.
J. B. Campbell, C. P. Gotwals, N. B. Maxey, and Kelly Brown, for plaintiff in error.
Franklin & Carey, for defendant in error.
BURFORD, C.
¶1 This proceeding was instituted originally in the county court, to effect the probate of an alleged lost will of Amanda M. Combs, deceased. The county court denied the probate, and the proponent of the will appealed to the district court, where the cause was heard de novo and the will admitted to probate. The contestants appealed to this court by petition in error and transcript. After the appeal had been lodged in this court more than 60 days, and after more than eight months, from the date of the final judgment in the district court, the proponents of the will. defendants in error here, moved to dismiss the appeal, alleging both jurisdictional and nonjurisdictional grounds. Thereupon the contestants, plaintiffs in error here, asked leave to amend the transcript. Upon this motion this court granted an order "allowing the record to be withdrawn for correction, same to be made before the trial court on five days' notice to the adverse party, the record to be returned to this court within 25 days, the amendment so made to be without prejudice to question the right to make the same" The record has been returned to this court. It appears that the only amendment made is a new certificate to the transcript by the clerk of the trial court. It is admitted that the former certificate was defective. Proponents now renew their motion to dismiss upon the original grounds therein contained and the additional ground that the amendment was not made "before the leged transcript. These motions are before the event their motion to dismiss is overruled, to strike certain portions of the alleged transcript. These motions are before us for decision.
¶2 Taking up the various questions in their logical order, it seems to be admitted that the original certificate to the transcript was so defective as to compel a dismissal of the cause, unless such certificate can be and is properly amended. It does not appear that contestants made the amendment before the trial court. While it is not our desire or purpose to sanction modification of the orders of this court by counsel, without our knowledge or consent, yet it is our desire to pass upon the cases presented to us upon their merits where counsel observe the settled rules of practice, the orders of this court, and the necessary jurisdictional requirements sufficiently to enable us to do so. In the press of business the original order allowing the amendment was made with the idea in mind that this appeal was by petition in error and case-made, that for such reason an amendment could only properly be allowed under the safeguard of the presence and approval of the trial court, and were such the case we would be disposed to hold counsel to a strict compliance with the order. However, the trial court has little or no functions to perform in relation to a transcript. It is properly certified by the clerk. It does not appear that the presence of the trial court would have served any useful purpose in making this amendment. Had our attention been called to the form of this appeal, the original order would have been modified. Such being the case we are disposed to pass over the noncompliance of counsel with the terms of the original order, and to consider the amendment as made.
¶3 The question then arises as to whether a defective certificate of the clerk may be amended so as to constitute a proper certificate after the time for lodging an appeal in this court has expired.
¶4 In Walcher v. Stone, 15 Okla. 130, 79 P. 771, the question here involved was directly decided, the court holding the certificate to the transcript in that case to be insufficient, and that it could not be amended after one year--the then period of limitation for filing appeals -- had expired. Walcher v. Stone, however, was decided upon the statute then in force and the general principles applicable to amendments. Since that decision the statute now embodied in sec. 5243, Rev. Laws 1910, was passed. That section provides, in part, as follows (emphasis ours):
"If, after any record or case-made is filed in the appellate court, in either matter a civil or a criminal cause, it shall appear that any motion which is of record in the court from which the appeal is taken, touching the cause appealed, or that any evidence heard on the trial of said cause, or that any statement or certificate or motion, or other matter is omitted from such record or case-made, or are insufficiently stated therein, the appellate court may, on its own motion, or on motion of any party to such cause * * * prepare such omitted parts, and file such corrections in the appellate court, with like force and effect as though such corrected or added parts had been originally incorporated in the record or case-made, when first filed * * * and such order to correct, or leave so to do, may be had any time before the cause is finally decided by the appellate court."
¶5 Since the passage of this statute, this court has dismissed cause for insufficient certificate to the transcript filed therein, but in these cases it does not appear that there was an application to amend. We have held that the amendment to be made must be an amendment as such, and that therefore a case-made could not be substituted for a copy thereof after the time for...
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