Sproat v. Durland

• Court: Supreme Court of Oklahoma
• Writing for the Court: BURFORD, C. J.
• Citation: 7 Okla. 230,54 P. 458,1898 OK 88
• Decision Date: 30 July 1898
• Parties: SAMUEL SPROAT v. OTTO C. DURLAND

1898 OK 88
54 P. 458
7 Okla. 230

SAMUEL SPROAT
v.
OTTO C. DURLAND

Supreme Court of Oklahoma

Decided: July 30, 1898

SYLLABUS

¶0 APPEAL--Insufficient Record. A record which fails to contain a copy of the final order or judgment sought to be reviewed presents no question to this court for its determination, and the appeal will be dismissed.

Error from the District Court of Oklahoma County; before Henry W. Scott, District Judge.

Action by Otto C. Durland against Samuel Sproat. From an alleged judgment, defendant brings error. Dismissed.

Amos Green & Son, for plaintiff in error.

J. H. Everest, for defendant in error.

BURFORD, C. J.:

¶1 This proceeding purports to be an appeal from a judgment rendered in the district court of Oklahoma county. Durland, the defendant in error, brought suit in ejectment against Sproat, who is plaintiff in error here. Sproat filed a cross-petition, in which he pleaded an equitable title in himself, and sought to have a resulting trust declared. A demurrer was sustained to the cross-petition, and it is averred that a judgment was rendered for Durland. The record consists of the original papers and a bill of exceptions. It appears from these papers that one trial was had before a referee, and on his report a judgment was rendered for Durland and against Sproat. But on motion of Sproat this judgment was set aside and vacated, and a second trial granted as a matter of right. This action vacated all the proceedings had before the referee, and it can make no difference what errors occurred in that trial. The plaintiff in error is not affected by them, as a new trial was ordered by the court.

¶2 It appears that a, second trial was had to the court, which resulted in favor of Durland. The judgment rendered on this second trial is the one plaintiff in error has attempted to appeal from. If any judgment was rendered on the second trial, we are not advised what it was. The only portion of the record before us which contains any of the proceedings of the court after the proceedings had before the referee were vacated is a copy of a journal entry, as follows:

"Otto C. Durland. v. Samuel Sproat. (No. 1,551.) Come now the plaintiff and defendant, by their counsel, and waive a jury and consent to a trial by court; and J. M. Owens is sworn and testified on behalf of plaintiff, and plaintiff and defendant rest; and judgment is rendered herein for the plaintiff and against the defendant, per journal entry; and defendant excepts to

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