Scott v. Woods Lumber Co.

• Decision Date: 30 May 1922
• Docket Number: Case Number: 10727
• Citation: 207 P. 449,1922 OK 195,86 Okla. 185
• Parties: SCOTT et al. v. WOODS LUMBER CO.
• Court: Oklahoma Supreme Court

1922 OK 195

207 P. 449

86 Okla. 185

SCOTT et al. v. WOODS LUMBER CO.

Case Number: 10727

Supreme Court of Oklahoma

Decided: May 30, 1922

Syllabus

¶0 1. Pleading--Sufficiency of Petition -- Surplusage. Where the plaintiff's petition, stripped of surplus and unnecessary verbiage, states a cause of action against the defendant, a general demurrer thereto should be overruled.

2. Pleading -- Judgment on Pleadings--Issues on Motion.

A motion for judgment on the pleadings presents two questions to the court in the following order: (1) Is there any issue of material fact? And if no issue of material fact is presented by the pleadings, (2) which party is entitled to the judgment?

3. Appeal and Error -- Procedure -- Case-Made--Transcript of Record.

There are two ways of bringing a record to this court in support of a petition in error: (a) The party appealing may attach to his petition in error a case-made containing all the record, including evidence and statements of the exceptions without the necessity of having the exceptions reduced to writing, allowed, and signed by the trial judge; (b) or the appealing party may attach to his petition in error a transcript of the record, and if he desires to bring to the court any part of the record other than the pleadings, the process, the return, reports, verdict, orders and judgments, as provided for in section 5146, Rev. Laws 1910, he must incorporate same into the record by a bill of exceptions.

4. Pleading--Judgment on Pleadings--Foreclosure of Materialman's Lien.

Record examined, and held, that the trial court did not err in rendering judgment in favor of the plaintiff on the pleadings.

Error from District Court, Craig County; A. C. Brewster, Judge.

Action by the Woods Lumber Company against John W. Scott and others to foreclose materialman's lien. Judgment for plaintiff, and certain of defendants bring error. Affirmed.

F. W. Church and Andrew J. Jones, for plaintiffs in error.

C. Caldwell, for defendant in error.

JOHNSON, J.

¶1 This is an appeal from the district court of Craig county. On the 18th day of April, 1918, Woods Lumber Company, a partnership composed of O. E. Woods and W. J. Woods, commenced an action in the district court of Craig county, Okla., against Mary Smith, John W. Scott, and the First National Bank of Miami as defendants, praying for judgment against the defendant Mary Smith for the sum of $ 418.35 and to foreclose a materialman's lien on the buildings and lands described in the said petition for said amount, and that said lien be adjudged superior to the rights of the defendant Scott and the First National Bank; that the lien be foreclosed and the property ordered sold to pay said amount, costs and attorneys' fees. No personal judgment was sought against Scott or the bank. Service was had on Mary Smith by publication, and she made default. Personal service was had on the other two defendants, and they answered. The plaintiff filed a motion for judgment on the pleadings as against the two answering defendants, and the trial court sustained the same and rendered judgment accordingly, to reverse which this proceeding in error was commenced by the defendant Scott and the bank by petition in error with a transcript of the record attached thereto. The parties will be referred to hereinafter as plaintiff and defendants, respectively, as they appeared in the trial court. The defendants' petition in error contains six specifications of error, which are as follows:

"(1) The court erred in sustaining the motion for judgment on the pleadings.

"(2) The court erred in overruling the general demurrer of said plaintiffs in error filed in said cause.

"(3) The court erred in denying the right of trial by jury in said cause.

"(4) The court erred in overruling the motion to strike filed by the plaintiffs in error in this cause.

"(5) The court erred in overruling the motion to require plaintiffs to make petition more definite and certain filed by plaintiffs in error in this cause.

"(6) The court erred in rendering judgment against the defendants in said cause."

¶2 The third specification of error, supra, was expressly waived by counsel in their brief.

¶3 Counsel for defendants have argued together specifications of error numbered 4 and 5 in their brief. These assignments cannot be considered by this court, because the motions therein referred to are not part of the record. As hereinbefore stated, this appeal is prosecuted by a transcript of the record, which does not contain any case-made or bill of exceptions, in which the motions referred to are incorporated as required by law. In the case of Stonebraker-Zea Cattle Co. v. Hilton, 34 Okla. 225, 124 P. 1062, this court stated in paragraph one of the syllabus as follows:

"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. 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. 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 See, also, the following cases for the same ruling: Brown-Beane Co. et al. v. Rucker, 36 Okla. 698, 129 P. 1; Craig v. Greer, 33 Okla. 302, 124 P. 1096; Green et al. v. Incorporated Town of Yeager, 23 Okla. 128, 99 P. 906; Land et al. v. Young et al., 24 Okla. 614, 104 P. 335; Nelson et al. v. Glenn et al., 28 Okla. 575, 115 P. 471; Tribal Development Co. v. White Bros. et al., 28 Okla. 525, 114 P. 736; Richardson v. Beidleman, 33 Okla. 463, 126 P. 816; Vann et al. v. Union Central Life Ins. Co. et al., 79 Okla. 17, 191 P. 175.

¶5 In the latter case, supra, in quite an elaborate opinion by Ramsey, J., speaking for the court, it was stated in syllabus paragraphs 8 and 9 as follows:

"(8) There are two ways of bringing a record to this court in support of a petition in error; (a) The party appealing may attach to his petition in error a case- made containing all the record, including evidence and statements of the exceptions without the necessity of having the exceptions reduced to writing, allowed, and signed by the trial judge; (b) or the appealing party may attach to his petition in error a transcript of the record, and if he desires to bring to the court any part of the record other than the pleadings, the process, the returns, reports, verdict, orders, and judgments, as provided for in section 5146, Rev. Laws 1910, he must incorporate the same into the record by a bill of exceptions.

"(9) The bill of exceptions must be reduced to writing during the term of court at which the proceedings were had, unless the ruling and decision excepted to is made in vacation or at chambers, allowed and signed by the trial judge, and filed with the pleadings as a part of the record. The bill of exceptions never becomes a part of the record until it is filed in the trial court; unless filed in that court it cannot be incorporated into a transcript in support of the petition in error in this court."

¶6 The defendants' second specification of error, that the court erred in overruling the general demurrer of defendants to plaintiff's petition is without merit. The petition in substance alleges that Pearl H. Smith and Mary Smith were husband and wife and that Pearl Smith is now dead. That in October, 1910, said Pearl Smith became the owner of the property (describing it) by conveyance to him by a warranty deed; that they lived on the said farm together, and in December, 1911, Pearl Smith conveyed the land to his wife, Mary Smith, and they continued to live on it; that said Pearl Smith and Mary Smith purchased the materials from plaintiff to build buildings on the said land; that plaintiff did not know of the transfer of the title to Mary Smith and charged the materials to Pearl Smith; that plaintiff did not know whether the conveyance was bona fide or not, but if so, Pearl Smith was acting as the agent of his said wife in purchasing the materials and with her knowledge and consent. That the last of the materials were furnished on the 17th day of August, 1917, amounted to $ 418.35, and that on the 8th of September, 1917, plaintiff filed a lien statement in the office of the court clerk of Craig county, Okla., the county in which the land lies, against the buildings and the farm. The...