St. Louis. & S. F. R. Co. v. Taliaferro

Decision Date10 October 1916
Docket NumberCase Number: 7694
Citation160 P. 610,58 Okla. 585,1916 OK 854
PartiesST. LOUIS. & S. F. R. CO. v. TALIAFERRO.
CourtOklahoma Supreme Court
Syllabus

¶0 1. APPEAL AND ERROR--Nature of Proceedings--Record--Statutory Requirements. Article 25, c. 60, Rev. Laws 1910, contains complete provisions prescribing the requirements and regulating the procedure for bringing a case to this court by petition in error with case-made attached.

2. APPEAL AND ERROR--Record--Scope and Contents--Case-made. Only those matters essential to present the errors complained of need be brought up. The party under this procedure may make a case containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to clearly present the points involved, eliminating all unnecessary or irrelevant matter; and, when served and settled as herein authorized, it will be sufficient.

3. SAME. Section 5317, requiring orders made out of court to be forthwith entered on the journal of the court by the clerk, is directory, and compliance with said requirement that such orders be so entered is not essential to the validity of such orders, nor is it necessary that the case-made show affirmatively the recording thereof.

4. SAME--Certificate of Trial Judge--Conclusiveness. The certificate of the judge who settles and certifies to a case-made is prima facie evidence of the facts therein recited, and cannot be impeached except in the manner authorized by statute (Rev. Laws 1910. sec. 5248.)

5. SAME--Orders Extending Time. A recital in a case-made, duly certified to by the judge, that an order was made extending the time in which to prepare and serve case, where the substance of the order is contained in the case-made, is sufficient, and motion to dismiss because it does not affirmatively appear in the case-made that such order of extension has been recorded upon the journal will be overruled.

Error from County Court, Marshall County; J. I. Henshaw, Judge.

Action between the St. Louis & San Francisco Railroad Company and W. N. Taliaferro. From the judgment, the railroad company brings error. Motion to dismiss overruled.

W. F. Evans, R. A. Kleinschmidt, E. H. Foster, and Kennamer & Coakley, for plaintiff in error.

Minter & Falkner and P. T. McVay, for defendant in error.

HARDY, J.

¶1 Motion is filed to dismiss this appeal because the case-made does not affirmatively show that the order extending the time to make and serve case-made, dated May 20, 1915, has been entered on the journal of the court as required by section 5317, art. 28, c. 60, and sections 5324, art. 29, c. 60, Rev. Laws 1910; which sections are as follows:

"Sec. 5317. Orders, made out of court, shall be forthwith entered by the clerk in the journal of the court, in the same manner as orders made in term."
"Sec. 5324. On the journal shall be entered the proceedings of the court of each day, and all orders of the judge in vacation or at chambers, and also all judgments entered on confession or default."

¶2 Undoubtedly these sections require that such orders be entered on the journal of the court, but the question here is whether the statutes require the fact of their having been recorded to affirmatively appear in the case-made.

¶3 The law regulating appeals by petition in error with case-made attached is found in article 25, c. 60, Rev. Laws 1910. Section 5241 of said article is as follows:

"A party desiring to have any judgment or order of the county, superior or district court, or a judge thereof, reversed by the Supreme Court, may make a case, containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the Supreme Court."

¶4 And the following sections contain complete procedure for service, amendment, settlement, and correction of the case-made, and nowhere in this article is there any requirement that the case shall show the condition of the record or the performance by the clerk of any ministerial duties imposed upon him by other provisions of the statute. Whatever may be the requirement where a case is brought here on a transcript of the record, the requirements as to a case-made are embraced within this article. A case-made was intended to be shorter and less expensive than a transcript, and only those matters essential to present the errors complained of need be brought up. The party may make a case containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of, and all that this requires is just a plain, concise statement of what was done in the action, and then only such parts as are necessary to present the errors complained of need be included. When prepared, it is served upon the opposite party, who may suggest any amendments which he thinks proper, and it is then upon notice of the time and place thereof presented to the judge for settlement. Section 5244 provides:

"* * * And if no amendments are suggested by the opposing party, as above provided, said case shall be taken as true and containing a full record of the cause, and certified accordingly."

¶5 And by section 5248 it is declared:

"The certificate of the judge who settles and certifies the case-made shall be prima facie evidence of the facts therein recited, unless the case-made on its face shows affirmatively that such certificate is in some material respect incorrect, or the said certificate be proven incorrect by affidavits or other competent evidence introduced in the appellate court in connection with a motion to correct the record or case-made."

¶6 These statutes provide the method by which a party desiring to have a judgment or order reversed may present in an abridged form enough of the proceedings to enable the appellate court to clearly understand the questions involved, and declare that the judge's certificate shall be prima facie evidence of the facts therein recited, and the correctness of such recitals may not be questioned unless the case-made shows on its face that such certificate is in some material respect incorrect or it may be proven incorrect by affidavits or other evidence in connection with a motion to correct the case-made. The statute does not authorize the certificate or the correctness of the recitals therein contained to be impeached on motion to dismiss as is here attempted.

¶7 In Holmberg v. Will, 49 Okla. 138, 152 P. 357, motion was made to dismiss because the case did not show a final order overruling the motion for a new trial, or that an order extending the time to make and serve case-made had been entered on the journal. The case contained a copy of the original judgment and a copy of motion for new trial, and a recital that the motion was overruled and exceptions saved, and also contained a recital that an extension of time was granted to make and serve case-made, and motion to dismiss was overruled. The opinion quotes from section 5241, supra, and then says:

"Counsel have cited us to no decision of this court or of any other court, holding that a failure to copy in the case-made the order of the trial court overruling the motion for a new trial is a fatal defect therein, when it contains a copy of such motion and a recital showing the same was overruled and exceptions taken, and we know of no such decision."

¶8 This is the only opinion of this court, so far as we know, that cites this statute or undertakes to construe it. In discussing what was necessary for a case-made to contain, it was said in Thompson et al. v. Fulton, 29 Okla. 700, 119 P. 244, in the first paragraph of the syllabus:

"A 'case-made,' otherwise called a 'case settled,' or a 'case agreed upon,' or, more frequently, a 'case,' is a statutory method of preparing a 'record' for appellate review. It is a written statement of the facts in a case, agreed to by the parties, and duly authenticated by the judge who tried the case, and submitted to an appellate court for the purpose of obtaining a review of the alleged errors of law occurring in the proceedings of the court below, as shown in the record thus presented."

¶9 And in the body of the opinion it was said:

"To present errors for review, the case-made must embody a statement of so much of the issue, proceedings, and evidence, or other matters in the action, as may be necessary to bring to the notice of the appellate court, from an examination of the papers settled and authenticated as a case-made, the errors complained of. The object of the case-made is to reduce the size of the record, eliminating all matters immaterial to the question sought to have reviewed."

¶10 This section of the statute was originally taken from Kansas, and was construed by the Supreme Court of that state prior to its adoption here. The original act of 1877 (Laws 1877, c. 185) relating to a case-made in that state was entitled "An act reducing the expense of litigation in the Supreme Court."

¶11 In Shumaker et al. v. O'Brien, 19 Kan. 476, the Supreme Court of Kansas said:

"To comply with the statute, to present errors for review, it must embody a statement of so much of the issue, proceedings, and evidence, or other matters in the action, as may be necessary to bring to our notice, from an examination of the paper settled and authenticated as a case-made, the errors complained of. Again, one object, we know, of a case-made, an object not always appreciated by counsel, is to reduce the size of the record. It was thought that all matters immaterial to the questions sought to have decided might be left out, and only a short, concise statement of the question, and the facts upon which it arose, presented."

¶12 And again in Neiswender v. James, 41 Kan. 463, 21 P. 573, the court said:

"There are two methods of bringing a civil case up for review: One upon a case-made, and the other upon a transcript. In no other way can the appellate jurisdiction of the court to
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