Short v. Hale
| Decision Date | 23 March 1965 |
| Docket Number | No. 41234,41234 |
| Citation | 400 P.2d 816 |
| Parties | E. H. SHORT, Jr., Plaintiff in Error, v. Melvina P. HALE, Mary Sue Davis, and Robert W. Raynolds, co-executors of the Estate of B. C. Hale, deceased, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where an instrument attached to the petition in error contains, and is authenticated as a copy of, less than the entire record proper, it is wholly ineffective as a certified transcript of the record and presents nothing for review; after the expiration of the maximum period (of three months) prescribed by 12 O.S.Supp.1963, § 972(b) for the commencement of an appeal such instrument may no longer be 'corrected' by supplying the omitted parts of the record proper and by procuring its recertification as a complete transcript of the judgment roll.
Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.
Appellees move to dismiss appeal; appellant seeks leve to supply the omitted parts in a deficient transcript of the record and to procure its reauthentication as a complete copy of the entire judgment roll. Application denied and appeal dismissed.
Paul Edwards, Tulsa, for plaintiff in error.
Robert W. Raynolds, Tulsa, for defendants in error.
This cause was instituted here and is sought to be prosecuted as an appeal by certified transcript of the record as that term is employed in 12 O.S.1961, § 956. Before the court is appellees' motion to dismiss and appellant's application for leave to incorporate into the record such 'additional' parts of the record proper as may 'by inadvertence' have been omitted there from. The decisive question to be determined here is whether failure to include in the transcript the entire record proper may be corrected by supplying the omitted parts after the expiration of the maximum time (of three months) prescribed by 12 O.S.Supp.1963, § 972(b) for the commencement of an appeal by certified transcript of the record, where the court clerk's certificate of authentication discloses that the certified transcript is less than the entire record proper.
This cause was commenced here October 15, 1964, by a petition in error to which there is attached an exhibit designated as 'Transcript on Appeal.' The exhibit is authenticated by a certificate of the court clerk specifying the instruments included therein. The certificate of authentication affirmatively shows on its face that parts of the record proper were omitted from the transcript.
The trial court's decision from which this appeal was taken struck appellant's amended petition and dismissed his action. This constituted an appealable order. Wilson v. Walker, 190 Okl. 299, 122 P.2d 160, 161. Pronounced on July 17, 1964, this final order was rendered before the effective date of our opinion in Poafpybitty v. Skelly Oil Co., Okl., 394 P.2d 515. The present appeal is thus unaffected by the rule announced in that case, and a motion for a new trial was hence unnecessary to preserve for review the assigned errors in determining an issue of law. Since this cause was instituted here as an appeal by certified transcript of the record, the maximum time (of three months) prescribed for its commencement by 12 O.S.Supp.1963, § 972(b) expired on October 17, 1964.
In their motion to dismiss filed here January 6, 1965, appellees urge, inter alia, that the instrument attached here to the petition in error fatally defective as a certified transcript of the record, as that term is employed in 12 O.S.1961, § 956, because such instrument contains, and is authenticated as a copy of less than the entire record proper. As appellees point out, the court clerk's certificate of authentication merely recites that the 'foregoing transcript' consists of a 'full, true, correct and complete' copy of certain enumerated instruments on file below. Conceding the deficiency, appellant seeks leave to now supply the omitted parts and to procure a reauthentication of the record as a complete transcript by an all-inclusive certificate of the court clerk.
There exist three methods of bringing a civil case up for review to the Supreme Court: (1) by case made; (2) upon the original record; and (3) by certified transcript of the record. If the appeal is instituted by case made, only such portions of the record and proceedings may be incorporated as are deemed necessary to present the errors assigned. The statute specifically authorizes such abridgment of the record. 12 O.S.1961, § 957. In fact, the case made method was originally devised for the very purpose of allowing the aggrieved party to procure corrective relief upon a reduced record. Neiswender v. James, 41 Kan. 463, 21 P. 573; St. Louis & S. F. R. Co. v. Taliaferro, 58 Okl. 585, 160 P. 610; Thomas v. Potter, 164 Okl. 212, 23 P.2d 381.
In an appeal brought upon the original record the aggrieved party may also present for review only so much of the proceedings as is deemed necessary to a full understanding of the errors assigned. 12 O.S.1961, § 956.5.
But in a proceeding in error by certified transcript of the record, as that term is employed in 12 O.S.1961, § 956, there exists no statutory authority for abridging the appellate record. Weaver v. Hall, 33 Kan. 619, 7 P. 238; Thomas v. Potter, supra. The transcript attached to the petition in error must contain the whole record proper and be authenticated by a certificate of the court clerk. This requirement is rigid. Nothing short of a copy of all of the proceedings that are a part of the record proper is sufficient. This must affirmatively appear from the certificate. Wade v. Mitchell, 14 Okl. 168, 79 P. 95; Thomas v. Potter, supra.
The rationale of this rule amply justifies its existence. Since there is no procedure for settlement of a transcript or for its amendment at the instance of the successful party, the appellate court is without any assurance that the parts omitted from an incomplete record would not, if included, explain the errors assigned or show them cured or harmless. Burns v. Burgett, 19 Kan. 162, 164.
The term 'record' or 'record' proper,' as used in reference to a transcript of the record, is synonymous with the term 'judgment roll' at common law. It comprises all instruments and pleadings which by force of 12 O.S.1961, § 704, form a part of the record proper. Tribal Development Co. v. White Bros., 28 Okl. 525, 114 P. 736; State ex rel. Commissioners of Land Office v. Whitfield, 200 Okl. 300, 193 P.2d 306. As commonly used the word record means a record of any sort, but a transcript of the record must consist of and include the entire judgment roll. Any other parts of the proceedings may be included by being incorporated in a bill of exceptions....
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