Marvel v. White

• Decision Date: 30 July 1897
• Citation: 50 P. 87,1897 OK 84,5 Okla. 736
• Parties: WILLIAM H. MARVEL v. CHARLES WHITE.
• Court: Oklahoma Supreme Court

1897 OK 84

50 P. 87

5 Okla. 736

WILLIAM H. MARVEL v. CHARLES WHITE.

Supreme Court of Oklahoma

Decided: July 30, 1897

Error from the District Court of Oklahoma County.

Motion to dismiss said cause on the ground that no petition in error has been filed in this court. Considered on said motion to dismiss. Motion sustained.

Syllabus

¶0 1. PRACTICE--Motion to Dismiss-- No Service of--Considered When. A motion to dismiss proceedings in error, which raises a jurisdictional question, will be considered and determined, when the case is reached for final disposition, although the notice thereof required by rule 16 of this court has never been given.

2. PETITION IN ERROR--Requisites of--Dismissal of Cause. An alleged proceeding in error will be dismissed when the instrument claimed to answer the purpose of a petition in error is defective, in not being entitled "Petition in Error," failing to set forth the errors complained of and not containing any of the other essential allegations of such pleading.

Charles H. Eagin and Ransom & Bailey, for plaintiff in error.

Asp, Shartel & Cottingham, for defendant in error.

KEATON, J.:

¶1 While this court declined to consider the motion to dismiss this cause at the time same was filed, viz., January 5, 1897, because no showing of the service of notice thereof was filed, as required by rule 16 of this court, yet, now, when said cause is reached for consideration on its merits, we feel compelled to determine the question raised by said motion, as it is one which questions the jurisdiction of this court. The motion, omitting the caption, is as follows: "Comes now the defendant in error, Charles White, and moves the court to dismiss this cause for the reason that no petition in error is filed with the case-made in this cause, nor is any assignment of errors on file herein. Asp, Shartel & Cottingham, attorneys for defendant in error."

¶2 The first page of the record, or papers, filed in this court is the only portion thereof that could possibly have been intended for a petition in error. It reads as follows:

"In the Supreme Court of Oklahoma Territory.

"William H. Marvel, plaintiff in error, v. Chas. White, defendant in error.

"APPEAL OF DEFENDANT.

"Comes now the plaintiff in error, and appealing from the orders, judgments and proceedings of the district court of Oklahoma county, in said territory, in favor of the said plaintiff, prays the supreme court to reverse the decision and judgment of said district court, and to remand said cause for a new trial, because of the errors complained of in the assignments of error hereinafter contained in the case-made and attached to this petition in error.

Respectfully submitted,

CHAS. H. EAGIN,

RANSOM & BAILEY,

"Attorneys for Appellant and Plaintiff in Error."

¶3 The next page, (designated as page No. 1 of the case-made), begins as follows:

"In the Supreme Court of Oklahoma Territory.

"William H. Marvel, plaintiff in error, v. Charles White, defendant in error.

"CASE-MADE--STATEMENT OF CASE,"

¶4 Which is followed by a condensed statement of the material proceedings had in said cause in the court below; said statement, occupying all of said page and the first half of the next, then comes the following alleged assignments of error, to- wit:

"ASSIGNMENTS OF ERROR.

"1. The court erred in setting aside the order of continuance made in said cause on the 11th day of May, 1895, without first giving due notice of such action to the defendant.

"2. The court erred in setting aside said order of continuance and in proceeding with the trial of said cause in the absence of the defendant and of his attorneys of record and without any notice to them or either of them.

"3. The court erred in refusing to set aside and vacate the judgment rendered in said cause upon the motion and showing made by defendant to vacate the same.

"4. The court erred in calling said cause for trial and in trying and determining the same before the time for making the issues and in rendering judgment against the defendant on the showing made by plaintiff in said case, by the time fixed by law for joining issues could not be tried at said time.

"CHAS. H. EAGIN, RANSOM & BAILEY.

"Attorneys for Plaintiff.

¶5 The filing marks on said record are on the cover to the case-made and are as follows: "Filed Dec. 13, '95. Edgar W. Jones, clerk." "Filed in district court, Oklahoma county, O. T., Dec. 12, 1895. W. H. Ebey, clerk, by T. A. Neal, deputy."

¶6 Our statute declares that "the proceedings to obtain such reversal shall be by petition to be entitled 'petition in error' filed in a court having power to make such reversal, vacation or modification, 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." (Sec. 4439, Ok. Stat. 1893). And in § 4442 it is further declared "that in all actions hereafter instituted by petition in error in the supreme court the plaintiff in error shall attach to and file with the petition in error the original case-made filed in the court below or a certified transcript of the record of said court."

¶7 Has the plaintiff in...