Long v. McMahan

• Decision Date: 29 January 1952
• Docket Number: No. 34398,34398
• Citation: 241 P.2d 185,205 Okla. 696
• Parties: LONG v. McMAHAN.
• Court: Oklahoma Supreme Court

Page 185

241 P.2d 185

205 Okla. 696

LONG v. McMAHAN.

No. 34398.

Supreme Court of Oklahoma.

Jan. 29, 1952.

Syllabus by the Court.

1. The court of its own motion should determine its jurisdiction, although such jurisdiction is not questioned by either party.

2. 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.

LaMar & Bailey, of Guymon, for plaintiff in error.

Hughes, Ogden & Ogden and Fred King, of Guymon, for defendant in error.

PER CURIAM.

This is an attempted appeal by petition in error with casemade attached. The casemade discloses that a jury verdict was returned in the action awarding damages to the plaintiff for breach of a covenant to rebuild contained in a lease of real estate. For convenience the parties are referred to in this opinion as they appeared in the trial court: plaintiff in error as defendant, and defendant in error as plaintiff.

It appears from a careful search of the casemade attached to the petition in error filed with this court that a verdict was rendered in favor of the plaintiff and against the defendant, by the jury empanelled to try the cause, on the 25th day of May, 1949. This verdict was properly entered on the 26th day of May, 1949. There is nothing in the case-made to indicate that a judgment of any king was ever rendered or entered of record by the trial court upon the verdict of the jury although the defendant filed a motion for new trial which was overruled on the 18th day of June, 1949, and the journal entry overruling the motion for new trial is contained in the casemade.

Neither party to this appeal has questioned the jurisdiction of this court to consider the appeal by reason of the failure of the record to show that a judgment was ever entered by the trial court but it is the duty of the appellate court in each case to examine into its jurisdiction, and if it is without jurisdiction to dismiss the appeal. Kenney v. Neumeyer, 171 Okl. 1, 41 P.2d 869; Saunders v. Firestone, 176 Okl. 135, 54 P.2d 1024; Hamilton v. Browder, 176 Okl. 229, 54 P.2d 1025; Biser v. Biser, 176 Okl. 210, 55 P.2d 446; Jones v. Norris, 185 Okl. 125, 90 P.2d 403; Oklahoma City-Ada-Atoka Ry. Co. v. Parks, Adm'r, 182 Okl. 598, 78 P.2d 791; Harber v. McKeown, 195 Okl. 290, 157 P.2d 753; Mid-Continent Pipe Line Co. v. Wilkerson, 200 Okl. 335, 193 P.2d 586.

The situation as presented to this court by the record in this case is almost identical with that presented to the court in the case of Dusbabek v. Bowers, 132 Okl. 179, 270 P. 3, 4. In that case the cause was tried to a jury, the jury returned a verdict for the plaintiff but as far as appeared from the casemade no journal entry of judgment of any kind was ever rendered by the trial court on the verdict and entered of record. After the verdict was entered defendants filed a motion for new trial, which was overruled by the trial court and the defendant appealed. In that case this court said:

'* * * There is no journal entry of judgment nor any reference in the clerk's minutes showing judgment upon the verdict of the jury.

'This court, in the case of Lillard v. Meisberger, 113 Okl. 228, 240 P. 1067, said:

"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...