Kansas City, M. & O. Ry. Co. v. Fain

• Decision Date: 09 April 1912
• Citation: 124 P. 70,34 Okla. 164,1912 OK 295
• Parties: KANSAS CITY, M. & O. RY. CO. v. FAIN.
• Court: Oklahoma Supreme Court

124 P. 70

34 Okla. 164, 1912 OK 295

KANSAS CITY, M. & O. RY. CO. v. FAIN.

Supreme Court of Oklahoma

April 9, 1912

Syllabus by the Court.

Where the case-made does not contain a recital to the effect that the record contains all the evidence introduced at the trial of the cause, this court will not review any question which requires an examination of all the evidence in order to correctly determine the same.

A record which fails to contain a copy of the final order or judgment sought to be reviewed, and in which it is not made to appear that the same is of record in the trial court presents no question to this court for its determination, and the appeal will be dismissed.

Commissioners' Opinion, Division No. 1. Error from the District Court Custer County; James R. Tolbert, Judge.

Action by Zeona May Fain against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff, and defendant brings error. Dismissed.

John A Eaton, of Kansas City, Mo., and D. W. Eaton, H. J. Eaton, and Fred B. Mertsheimer, for plaintiff in error.

A. J Welch, of Clinton, and R. J. Shive, of Butler, for defendant in error.

ROBERTSON C.

Counsel for defendant in error insists that the alleged errors complained of in the petition in error cannot be inquired into by this court, for that the case-made contains no recital or averment that it contains all the evidence introduced at the trial. An examination of the case-made discloses the fact that there is no such recital or certificate therein. There is a certificate by the stenographer and the certificate of the trial judge; but this court, time and again, has held that neither is sufficient for the above purpose. In Gaffney v. Stanard et al., 122 P. 510, decided March 12, 1912, opinion by Mr. Justice Williams, it is said: "In order to consider the questions sought to be reviewed by the plaintiff in error, it is essential to examine the evidence heard by the trial judge. The defendants in error in their brief, however contend that the evidence cannot be considered by this court, as the case-made does not contain a positive averment by the way of recital that it contains all the evidence introduced or submitted on the trial of the cause. Where such a recital in the case-made is lacking, it has been time and again held by this court that it will not review any question depending upon the facts for its determination." See, also, in support of this rule, Tootle, Wheeler & Motter Merc. Co. v. Floyd, 28 Okl. 308, 114 P. 259; Wagner v. Sattley Mfg. Co., 23...