Powell v. First State Bank of Clinton

• Decision Date: 30 November 1915
• Docket Number: Case Number: 5656
• Citation: 155 P. 500,1915 OK 982,56 Okla. 44
• Parties: POWELL et al. v. FIRST STATE BANK OF CLINTON.
• Court: Oklahoma Supreme Court

1915 OK 982

155 P. 500

56 Okla. 44

POWELL et al. v. FIRST STATE BANK OF CLINTON.

Case Number: 5656

Supreme Court of Oklahoma

Decided: November 30, 1915

Syllabus

¶0 1. APPEAL AND ERROR--Case-Made--Time for Serving. A purported case-made, which is not served within three days after the judgment or order appealed from is entered, or within an extension of time duly allowed, is a nullity, and cannot be considered by this court.

2. APPEAL AND ERROR--Dismissal--Motion for New Trial. Where a case-made filed in this court fails to show that the trial court passed on the motion for new trial, the petition in error will be dismissed.

3. APPEAL AND ERROR--Case-Made--Certificate of Court Stenographer. The certificate of the stenographer that the evidence contained in the case-made is a correct and complete transcript of all the evidence offered on the trial is not sufficient.

4. APPEAL AND ERROR--Presentation for Review--Evidence. Where the record on appeal does not show that it contains all the evidence taken in the trial court, no error can be reviewed arising on a question of evidence.

5. APPEAL AND ERROR--Presentation for Review--Evidence--Dismissal. If, on investigation of a case-made, it appears that material evidence introduced on the trial in the lower court has been omitted therefrom, and that said evidence is necessary for a proper determination of the case, the appeal should be dismissed, even though the certificate of the trial judge recites that the case-made contains all the evidence.

6. APPEAL AND ERROR--Garnishment--Necessary Parties--Principal Defendant. Section 4824, Rev. Laws 1910 Ann., provides that "upon the filing of such affidavit a garnishee summons shall be issued by the clerk and served upon the defendant or his attorney of record, and each of the garnishees, in the manner provided for service of summons, and shall be returned with proof of service in five days." Held that, under this section of the statute, the principal defendant is a necessary party to the garnishment proceedings in the lower court, and also a necessary party on appeal to this court.

7. APPEAL AND ERROR--Necessary Parties. One whose rights may be affected by a reversal or modification of a judgment appealed from is a necessary party in the appellate court.

Error from District Court, Custer County; James R. Tolbert, Judge.

Action by the First State Bank of Clinton against L. L. Murray, wherein garnishment summons was issued against H. C. Powell and another. Judgment for plaintiff, and the garnishees bring error. Case dismissed.

Echols & Merrill, for plaintiffs in error.

A. J. Welch, for defendant in error.

ROBBERTS, C.

¶1 The First State Bank of Clinton, Okla., defendant in error, brought an action against one L. L. Murray, in the district court of Custer county, Okla., and had a garnishee summons issued against H. C. Powell and S. L. Shore, plaintiffs in error. Plaintiffs in error answered the garnishment proceedings by affidavit, saying that they had no property within their possession belonging to Murray, and that they were not in any manner indebted to him. Upon this, the defendant in error took issue, trial was had before the court, and judgment rendered against the plaintiffs in error as garnishees, on the 9th day of April, 1913, for the sum of $ 415.85, with interest. Motion for new trial was filed, and garnishees bring error. The petition in error was filed in this court on the 7th day of October, 1913.

¶2 On the 17th day of September, 1915, the defendant in error filed its motion to dismiss the appeal based upon the following grounds:

"1. The judgment was rendered April 9, 1913, and case-made was served August 20, 1913, and the record in this case does not show any order extending time for service of case-made.

"2. The record shows the filing of a motion for a new trial, but does not show that such motion was ever acted upon by the trial court.

"3. Plaintiff in error complained of the court's findings of fact as not being supported by the evidence, but the case-made fails to show that it contains all the evidence, records, and proceedings. And there is no stipulation by counsel that the case-made is a true, complete, and correct one.

"4. The record affirmatively shows that the same does not contain all the evidence. At page 45, two important exhibits, 'C' and 'D,' were introduced in evidence; but they are not in the record. At page 54, another important exhibit was introduced in evidence; but it is not in the record.

"5. The defendant L. L. Murray, the principal judgment debtor, is not made a party to this appeal."

¶3 This motion was served on counsel for plaintiffs in error on the 15th day of September, 1915, and has at this time been on file in this court more than two months, and no answer or denial of the charges therein has been made.

¶4 We have examined the record, and, so far as we have been able to ascertain therefrom, the grounds for dismissal set out in the motion appear to be true.

¶5 The first contention is that the case-made was not served within three days after judgment, and there is no showing in the record that the time was extended.

"A purported case-made, which is not served within three days after the judgment or order appealed from is entered or within an extension of time duly allowed, is a nullity, and cannot be considered by this court. Cowan v. Maxwell, 27 Okla. 87, 111 P. 388; Haynes v. Smith, 29 Okla. 703, 119 P. 246; Wagoner v. Gibson, 32 Okla. 14, 121 P. 625; Wood v. Jones, 32 Okla. 640, 122 P. 678."

¶6 The second ground is that the record fails to show that the motion for new trial was passed upon by the trial court.

"Where a case-made filed in this court fails to show that the trial court passed on the motion for new trial, the petition in error will be dismissed. Swank v. Tallman, 25 Okla. 424, 106 P. 644."

¶7 The third and fourth causes for dismissal will be considered together, and are that the case-made fails to show that it contains all the evidence, records, and proceedings of the trial court, but, on the contrary, said case-made shows on its face that it does not contain all the evidence introduced on the trial.

¶8 Upon examination, we find a certificate of the court stenographer stating the necessary facts; but, under the decisions of this court, such certificate is not sufficient, and cannot be considered.

"The certificate of the stenographer that the evidence contained in the case-made is a correct and complete transcript of all the evidence offered on the trial is not sufficient. Wagner v. Sattley Mfg. Co., 23 Okla. 52, 99 P. 643."

¶9 The record shows on its face that certain exhibits, "C," "D," and "1," were introduced in evidence, but are not contained in the case-made.

¶10 On the 10th day of September, 1915, counsel for plaintiff in error filed a motion in this court with a certified copy of the omitted Exhibit 1 attached thereto, and also an...