Menten v. Shuttee

• Decision Date: 14 January 1902
• Citation: 67 P. 478,11 Okla. 381,1902 OK 2
• Parties: MENTEN v. SHUTTEE et al.
• Court: Oklahoma Supreme Court

67 P. 478

11 Okla. 381, 1902 OK 2

MENTEN v. SHUTTEE et al.

Supreme Court of Oklahoma

January 14, 1902

Syllabus by the Court.

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

2. The record proper in a civil action consists of the petition answer, reply, demurrers, process, rulings, orders, and judgment; and incorporating motions, affidavits, or other papers into a transcript will not constitute them a part of the record, unless made so by bill of exceptions.

3. Motions and proceedings which are not part of the record proper can only be presented for review by incorporating them into a case-made, or by preserving them by bill of exceptions and embracing them in the transcript.

4. The supreme court will not review any alleged error of the trial court, unless the error complained of is in some manner assigned for review by the petition in error.

5. A ruling of the trial court upon a demurrer to the petition may be presented by a transcript, without bill of exceptions or case-made, provided the ruling upon the demurrer is one of the assignments of error in the petition in error.

Error to district court, Canadian county; before Chief Justice Jno. H. Burford.

Action by Otto A. Shuttee and others against Frank Menten. Judgment for plaintiffs, and defendant brings error. Affirmed.

R. B Forrest, A. M. Baldwin, and J. I. Phelps, for plaintiff in error.

Blake Blake & Beeks, for defendants in error.

PER CURIAM.

The defendants in error brought an action in the district court of Canadian county against the plaintiff in error to enjoin him from engaging in and carrying on the business of a retail liquor dealer in the business portion of the city of El Reno where the principal retail merchandising is carried on, and where no saloons are located. The plaintiffs in said cause alleged that they were taxpayers in the ward, and that the defendant had procured a license from the county clerk without having filed a petition signed by the required number of resident taxpayers without having given the notice by publication as required, and without having executed the bond as provided by statute, and that the was proposing to open a saloon and carry on the retail liquor business under such license, which it was alleged was void; and that said saloon would be a public nuisance, injure their business and trade, depreciate the value of their property and cause them to suffer irreparable loss, and involve them in a multiplicity of lawsuits. The defendant demurred to the amended petition, which was overruled, and a temporary order of injunction granted. The defendant then moved to dissolve the temporary order, which motion, after hearing and consideration, was overruled. The defendant then elected to stand upon his demurrer, and refused to plead further. The temporary injunction was made perpetual, and he now appeals from the final judgment. The case is brought here on a transcript. No bill of exceptions was filed in the court below to preserve any of the motions, rulings, or...