Sherman v. Fid. Mut. Life Ins. Co.

• Decision Date: 19 June 1934
• Docket Number: Case Number: 25525
• Court: Oklahoma Supreme Court
• Parties: SHERMAN et ux. v. FIDELITY MUTUAL LIFE INS. CO. et al.

1934 OK 370

36 P.2d 502

170 Okla. 99

SHERMAN et ux. v. FIDELITY MUTUAL LIFE INS. CO. et al.

Case Number: 25525

Supreme Court of Oklahoma

Decided: June 19, 1934

Syllabus

¶0 Appeal and Error--Dismissal of Appeal by Transcript From Order Refusing to Vacate Appointment of Receiver, Evidence not Being Properly Before Court.

Where the plaintiff in error prosecutes an appeal from an order refusing to vacate the appointment of a receiver and urges the lack of jurisdiction of the court to appoint the receiver because the property involved is a homestead, and the plaintiff in error appeals by transcript and bill of exceptions, and the evidence is not brought to this court for review, the appeal presents no question reviewable by this court and will be dismissed.

Application to File Second Petition for Rehearing Denied December 18, 1934.

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Action by the Fidelity Mutual Life Insurance Company against Charles L. Sherman et ux. and others to foreclose a mortgage. From an order refusing to vacate the appointment of receiver, defendants Charles L. Sherman et ux. appeal. Dismissed.

Franklin H. Griggs, for plaintiffs in error.

A. K. Little and Kleinschmidt & Johnson, for defendants in error.

PER CURIAM.

¶1 This action was commenced on the 26th day of June, 1933, in the district court of Tulsa county, Okla., for the foreclosure of a mortgage. On the 20th day of January, 1934, the Honorable Harry L. S. Halley, district judge, appointed Bob Alert receiver. On the 4th day of April, 1934, the defendants Sherman and wife filed their application to vacate the order appointing receiver, which is as follows:

"Now come the defendants Sherman and move the vacation of the order made and entered herein on the 20th day of January, 1934, in and by the terms of which a receiver was appointed for the premises involved in this action, upon the grounds and for the reasons that the said order was improvidently made and was and is without and beyond the jurisdiction of the court. Their said motion is based and will be submitted upon all of the files and records of the court herein as well as those in cause No. 47834."

¶2 On the 24th day of April, 1934, the court entered the following order:

"This matter having duly come on to be heard before the undersigned judge of the above-entitled court this 24th day of April, 1934, on the motion of the defendant C. L. Sherman to vacate the order made and entered herein on the 20th day of January, 1934, in and by the terms of which a receiver was appointed for the premises involved in this action, the plaintiff appearing by its attorneys, Kleinschmidt & Johnson, and the defendant C. L. Sherman in person and by his attorney, Franklin H. Griggs, the receiver being also present in person, now after due consideration of the motion, papers, and the arguments of counsel, the court being fully advised, it is herein and hereby.

"Ordered that the said motion to vacate be and it is in all things denied.

"To which act on the part of the court the defendant excepted, his exceptions were allowed and he gave notice in open court of his intention to appeal to the Supreme Court of the state of Oklahoma, which said notice the clerk was ordered and directed to enter upon the probate journals and other records of the court.

"Harry L. S. Halley, District Judge."

¶3 The appeal is taken from that order. The defendants in error have filed motion to dismiss the cause, urging that it comes within the rule laid down in Skelly Oil Co. v. Globe Oil Co., 87 Okla. 225, 209 P. 321. That case held as follows:

"Upon an appeal from an order refusing to discharge a receiver, the question presented for review is whether the court erred upon the evidence introduced to discharge the receiver, and where a party appeals by transcript from such order and the evidence is not before this court for review, the appeal presented no question reviewable by this court and will be dismissed."

¶4 The plaintiff in error in the response to the motion to dismiss states that he does not quarrel with the rule laid down in the above-cited cases, but that the case at bar is easily distinguished from them both. That in each of those cases the appeal is by transcript, which...