Poafpybitty v. Skelly Oil Co.

• Decision Date: 07 July 1964
• Docket Number: No. 40777,40777
• Citation: 394 P.2d 515,1964 OK 162
• Parties: Frank POAFPYBITTY, Carl Poafpybitty, Thompson Poafpybitty, Louise Poafpybitty and Laverne Aitson, Plaintiffs in Error, v. SKELLY OIL COMPANY, a corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 515

394 P.2d 515

1964 OK 162

Frank POAFPYBITTY, Carl Poafpybitty, Thompson Poafpybitty, Louise Poafpybitty and Laverne Aitson, Plaintiffs in Error, v. SKELLY OIL COMPANY, a corporation, Defendant in Error.

No. 40777.

Supreme Court of Oklahoma.

July 7, 1964.

Syllabus by the Court

1. Mere failure to attach a certificate specifying the latest date for the commencement of a proceeding in error in the Supreme Court does not render the 'reception' of an appeal 'inadvertent' within the meaning of 12 O.S.Supp., 1963, Sec. 972(c), and if an appeal be timely brought, its dismissal is not required by that statute.

2. By the terms of 12 O.S.Supp., 1963, Sec. 651, an error in determining an issue of law was placed in the same category as error occurring during the trial, and neither may be presented for review in the Supreme Court unless the aggrieved party assigned it in the motion for new trial which was acted upon and denied by the trial court.

Appeal from the District Court of Oklahoma County; A. P. Van Meter, Judge.

Motion by defendant in error to dismiss appeal for failure to comply with the provisions of 12 O.S.Supp., 1963, Secs. 651 and 972(c). Statutes construed and motion denied.

Charles Hill Johns, and Huston Bus Hill, Oklahoma City, for plaintiffs in error, Smith, Johns & Neuffer, of counsel.

S. W. Wells, Tulsa, and Cantrell, Douglass, Thompson & Wilson, Oklahoma City, for defendant in error.

BERRY, Justice.

In this proceeding in error by case made plaintiff below seeks review of an adverse judgment sustaining defendant's demurrer to the petition and dismissing the action. Defendant moved to dismiss the appeal, urging two grounds:

(1) Plaintiff neglected to comply with the 'mandatory' provisions of 12 O.S.Supp.1963, Sec. 972(c) by his failure to timely procure and attach to the petition in error, or the case made, the required trial judge's certificate specifying the latest date for the commencement of this appeal; and (2) Plaintiff neglected to comply with the 'mandatory' provisions of 12 O.S.Supp.1963, Sec. 651, because no motion for new trial was presented below and denied by the lower court, but the appeal is sought to be prosecuted directly from the adverse judgment.

The contentions, as outlined, present for our construction two recently enacted amendatory statutes. Both questions raised are of first impression. Their determination is urgently needed for the guidance of the bench and bar. Mindful of these considerations, the court directed that its disposition of defendant's motion be effected by an opinion to be promulgated in advance of the regular submission of this cause on its merits.

An appeal is governed by the provisions of the law which were in force and effect at the time the judgment sought to be reviewed was rendered. Merriett et al. v. Newton et al., 67 Okl. 150, 169 P. 488. The judgment under review was rendered on September 20, 1963-12 O.S.Supp. 1963 § 972(c), passed without an emergency clause, became effective ninety days after the adjournment of the 1963 legislative session, or on September 13, 1963. Art. 5, Sec. 58, Okl.Const. Therefore, the cited enactment was in force and effect when judgment was rendered herein and is applicable to this proceeding in error.

The terms of 12 O.S.Supp.1963 § 972(c), insofar as they apply hereto, require that every proceeding in error 'shall have attached to it a certificate, executed by a judge of the trial court, specifically stating by day, month and year the latest date by which the petition in error can be filed in the Supreme Court * * *' in compliance with the applicable statutes. In the concluding sentence the Act provides that 'In case of an inadvertent reception of such an appeal, it shall be dismissed promptly by the Chief Justice * * *.'

Defendant argues that plaintiff's failure timely to procure and attach the certificate prescribed by Sec. 972(c), supra, operates to render the 'reception' of this appeal 'inadvertent' and requires its dismissal.

Sec. 972(c) forms a part of S.B. 50 and H.B. 558, S.L., 1963, pp. 115, 241. Both bills are identical. According to their title, the Act requires 'the dismissal of an appeal that is filed late.' Viewed in the light of its own language, the title clearly provides that the appeals required to be dismissed are only those which are found to have been 'filed late.'

In view of our constitutional provision requiring that the subject of a legislative Act shall be clearly expressed in its title, Art. 5, Sec. 57, Okl.Const., the Legislature is bound by its selection of a restrictive title and such title has the effect of limiting the text of an Act. The title itself will be construed with reference to the language employed in it alone and not in the light of what the body of the Act contains. Excise Board of Washita County v. Lowden, 189 Okl. 286, 116 P.2d 700, 702.

No contention is made here that this proceeding was brought too late. We conclude that mere failure to attach a certificate specifying the latest date for the commencement of a proceeding in error will not render the 'reception' of an appeal 'inadvertent.' The dismissals commanded by Sec. 972(c), supra, relate to appeals which were in fact 'filed late.'

The other amendatory statute under consideration is H.B. 562, S.L.1963, p. 326, 12 O.S.Supp.1963 § 651. By this enactment a re-examination of an issue of law became included in the statutory definition of a new trial. Defendant asserts that this inclusion makes it now mandatory that errors in resolving an issue of law be preserved for review by a motion for new trial. The question to be decided is, therefore, whether the amendatory Act in question requires or merely authorizes that a re-examination of an issue of law be sought by motion for new trial and that such motion be acted upon before errors assigned therein may be presented for review.

This is an appeal from the judgment entered for defendant upon sustaining its demurrer to plaintiff's petition. Before the amendment under consideration was enacted, the law stood firmly settled that (1) an appeal from lower court's order sustaining a demurrer to the petition and dismissing the action presents an error apparent upon the face of the judgment roll; (2) such appeal may be prosecuted directly from the judgment (without preserving the errors for review by motion for a new trial or formal exceptions) either by transcript of the record or by case made. 12 O.S.1961 § 952; State ex rel. Commissioners of Land Office v. Whitfield et al., 200 Okl. 300, 193 P.2d 306, 308; Oxford v. State, 80 Okl. 103, 194 P. 101; Stone v. Clogston, 25 Okl. 162, 105 P. 642; Pure Oil Co. v. Quarles, 183 Okl. 418, 82 P.2d 970; Commercial Discount Co. v. Navel, Okl., 385 P.2d 476, 478; and (3) a motion for new trial is neither necessary nor authorized to present for review errors in entering judgment for the defendant upon sustaining his demurrer to the petition. This is because the purpose of a motion for new trial (under Sec. 651, supra, before its amendment here under consideration) is to procure a re-examination of an issue of fact in the same court, and '[t]here is no such thing as a new trial of issues of law.' Clapper v. Putnam Co., 70 Okl. 99, 158 P. 297, 298; Wagner v. A., T. & S. F. R. Co., 73 Kan. 283, 85 P. 299; Chivers v. Board of Com'rs of Johnston County, 62 Okl. 2, 161 P. 822, 824, L.R.A.1917B, 1296.

In contrast to the rule just stated, errors occurring during the trial cannot be considered by the Supreme Court unless the aggrieved party has filed a motion for new trial, presented it to the lower court and met with adverse disposition thereof. Archerd v. Ware, 115 Okl. 100, 242 P. 1043, 1044; Cogshall et al. v. Spurry, 47 Kan. 448, 28 P. 154, 155; Beall v. Mutual Life Ins. Co. of New York et al., 7 Okl. 285, 54 P. 474, 475; Bradford v. Brennan, 15 Okl. 47, 78 P. 387, 388; Stinchcomb et al. v. Myers, 28 Okl. 597, 115 P. 602, 603.

Plaintiff urges that a motion for new trial was not necessary here because the amendatory Act, H.B. 562, S.L.1963, p. 326, cannot be viewed as repealing or abridging any existing provisions of the law which contemplate or expressly authorize an appeal from the judgment alone in order to procure a review of errors apparent on the face of the judgment roll. Cited in support of this argument are 12 O.S.1961 §§ 952, 953, 956 and 972, all of which are said to reflect that an appeal may be taken from either a judgment or final order in the case. We are also urged that mere failure to file a motion for new trial does not require a dismissal of appeal, but at most operates to confine inquiry on review to those errors which appear on the face of the judgment roll. Hyre v. Pratt, Okl., 382 P.2d 18, 21.

In testing the effect of the...