McCarthy v. Bentley

• Decision Date: 06 September 1905
• Citation: 16 Okla. 19,1905 OK 77,83 P. 713
• Parties: J. B. MCCARTHY v. D. BENTLEY.
• Court: Oklahoma Supreme Court

1905 OK 77

83 P. 713

16 Okla. 19

J. B. MCCARTHY v. D. BENTLEY.

Supreme Court of Oklahoma

Decided: September 6, 1905

Syllabus

¶0 1. PRACTICE--Appeal--Motions. Motions presented in the trial court the rulings thereon, and exceptions, are not properly part of the record, and can only be presented and preserved for review on appeal to the supreme court by incorporating the same into a bill of exceptions, or case made.

2. APPEAL--Errors. The record in this case discloses no error which can be reviewed by this court.

Error from the Probate Court of Caddo County; before M. N. Gish, Trial Judge.

F. E. Riddle, for plaintiff in error.

A. J. Morris, for defendant in error.

BEAUCHAMP, J.

¶1 On the 3rd day of October, 1903, the defendant in error, D. Bentley, filed his petition in the probate court of Caddo county, praying judgment upon an attachment bond executed by the Williamson-Halsell-Frasier Co., and the plaintiff in error, J. B. McCarthy, for the sum of $ 235.00, for damages for wrongfully causing an attachment to be levied upon certain personal property belonging to defendant in error. Answer was filed by the Williamson-Halsell-Frasier Co. and McCarthy. The case came regularly on for trial on the 25th day of January, 1904. Bentley appeared in person and by his attorney; McCarthy and his co-defendant the William-Halsell-Frasier Co. not appearing Trial was had resulting in a judgment against Bentley and the Williamson-Halsell-Frasier Co., and on the 28th day of January, 1904, F. E. Riddle, as attorney for the defendants, made application for a new trial on behalf of the Williamson-Halsell-Frasier Co., which was by the court granted, and the cause as between Bentley and the Williamson-Halsell-Frasier Co. was set for trial on the 9th day of February, 1904, and on that day, Bentley appeared by his attorney and the Williamson-Halsell-Frasier Co., by its attorney, and the Williamson-Halsell-Frasier Co., and McCarthy moved the court to correct the journal entry made on the 28th day of January, 1904, upon the motion for a new trial, for the reason that said motion for a new trial was made on behalf of both defendants, (Williamson-Halsell-Frasier Co. and McCarthy); that defendants were both represented by the same attorney of record; that said attorney presented said motion on behalf of both defendants; which motion was by the court heard and overruled. Thereupon the Williamson-Halsell-Frasier Co. answered ready for trial, and the plaintiff dismissed as to it, leaving the judgment standing against the plaintiff in error, McCarthy.

¶2 So far as the record in this case discloses, no exceptions were saved by McCarthy, by bill of exceptions or otherwise. The case is brought here by McCarthy by petition in error, and what purports to be a transcript of the record and of the files and proceedings in the probate court.

¶3 The petition in error contains five assignments of error;

"1st. That said court erred in entering up a judgment on his docket showing that a new trial had been granted as to the Williamson-Halsell-Frasier Company, principal on said bond, and leaving the judgment still in force against this plaintiff in error as surety on said bond.

"2. The court erred in refusing to correct the journal entry in order that it might show that a new trial was granted as to both defendants.

"3. The court erred in not setting the judgment aside as to this plaintiff in error, the surety on said bond, after the Williamson-Halsell-Frasier Company, principal on said bond, had been released from any liability.

"4. The court erred in its refusal to grant a new trial as to this plaintiff in error.

"5. The court erred in overruling the motion of plaintiff in error for a new trial, and in attempting to enforce a judgment against him as surety on said bond, after the principal, the Williamson-Halsell-Frasier Company had been released."

¶4 The first, second, fourth and fifth assignments in error relate only to alleged errors of the court in its rulings upon the motions, none of which are a part of the record proper, and this court has repeatedly held that such matters are not a part of the record without a case made or bill of exceptions. McMeachan v. Christy, 3 Okla. 301, 41 P. 382; Lookabaugh v. Lavance, 6 Okla. 358, 49 P. 65; City of Kingfisher v. Pratt, 4 Okla. 284, 43 P. 1068; Menten v. Shuttee...