In re Garland

• Decision Date: 23 November 1915
• Docket Number: Case Number: 5203
• Citation: 1915 OK 977,52 Okla. 585,153 P. 153
• Court: Oklahoma Supreme Court
• Parties: In re GARLAND

1915 OK 977

153 P. 153

52 Okla. 585

In re GARLAND

Case Number: 5203

Supreme Court of Oklahoma

Decided: November 23, 1915

¶0 1. APPEAL AND ERROR -- Presentation for Review -- Record -- Journal Entry. Where there appears in the case-made a purported journal entry of judgment, which does not bear the filing mark of the clerk of the court or other indication that it ever became a record in the case, nothing is presented to this court for decision.

2. APPEAL AND ERROR--Case-Made--Requisites. A simple recital in the case-made cannot take the place of a court order. Not only the acts of granting judgment and ordering extension of time to make and serve a case-made are necessary, but they must be entered of record as required by the statute, and such entry of record must affirmatively appear.

3. SAME-- Authentication--Sufficiency. Where a case-made is signed by the trial judge, but is not attested by the signature of the clerk and seal of the court, it is not sufficiently authenticated, "as required by the statute," to constitute a valid case-made, and the judgment of the trial court cannot be reviewed, and the appeal will be dismissed.

Error from District Court, Haskell County; W. H. Brown, Judge.

In the matter of the appeal of Mrs. R. D. Garland from a decision of the Board of County Commissioners of Haskell County. Judgment for defendant, and plaintiff brings error. Dismissed.

A. L. Beckett and Guy A. Curry, for plaintiff in error.

WATTS, C.

¶1 This case presents an appeal from the district court of Haskell county, where the plaintiff in error was plaintiff and defendant in error was defendant. The issues were submitted to the court without the intervention of a jury. After the introduction of the evidence the court rendered judgment for the defendant, from which the plaintiff appeals.

¶2 The purported journal entry of judgment is as follows:

"JOURNAL ENTRY.

"Now on this 16th day of December, 1912, the same being one of the days of the regular December, 1912, term of said court, the above-entitled cause coming regularly to be heard and tried, and the plaintiff being present in person and by her attorneys, and the defendants, G. O. McWhorter, chairman of the board of county commissioners, and W. J. Smith and O. A. Wilcox, and by the county attorney, and each announces ready for trial, the case is tried before the court. And the court, having heard all the evidence adduced on both behalf of the plaintiff and the defendant, and having heard the arguments of counsel, and being fully advised in the premises finds, judgment for the defendant, board of county commissioners, to which ruling the plaintiff excepted."

¶3 The above purported journal entry does not appear to have reached the clerk of the trial court; at least there is no filing mark thereon or other indication that it ever became a part of the record in this case. Rev. Laws 1910 provide:

"Section 5143. All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in this action."

"Section 5316. Every direction of a court or judge made, or entered in writing, and not included in a judgment, is an order."

"Section 5317. Orders, made out of court, shall be forthwith entered by the clerk in the journal of the court, in the same manner as orders made in term."

In Walker v. Board of County Commissioners of Grant County, 44 Okla. 350, 144 P. 793, Harrison, C., said:

"These questions, however, are not properly presented here, for the reason that it appears from the case-made that neither the original petition, answer, agreed statement of facts, nor journal entry of judgment, was ever filed with the clerk of the district court. That is, the purported petition, answers, agreed statement of facts, and journal entry presented here bear no copy of filing marks nor other evidence that their originals were ever filed with the district clerk. * * * And therefore, under Mobley v. C., R. I & P. Ry. Co., 44 Okla. 788, 145 P. 321, present nothing to this court for decision."

¶4 See, also, Morris v. Caulk, 44 Okla. 342, 144 P. 623; Fife et al. v. Cornelous et al., 35 Okla. 402, 124 P. 957.

¶5 In Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co., 23 Okla. 824, 102 P. 708, Hayes, J., said:

"The case-made, however, was not served within 90 days'' extension granted by the first order. As stated above, the case-made contains a second purported order made by the trial court on April 21, 1908, extending the time for a period of 25 days from the 22d day of April, 1908. This purported order is inserted in the case-made, but the case-made contains no recital that such order was made in the case; nor is it in any manner identified as an order made in the cause, and it appears from the case-made that the same was never filed in the trial court or entered of record therein, as is required by the statute. Section 533 (section 4731), of the Code requires that all orders made out of court shall forthwith be entered by the clerk in the journal of the court in the same manner as orders made in term. A purported order, extending the time in which to make and serve a case-made which has never been filed in the trial court as a part of the record therein, is not entitled to be made a part of the case-made, and is of no effect in this court. Since it fails

...