St. Louis & S. F. R. Co. v. Taliaferro
Decision Date | 10 October 1916 |
Docket Number | 7694. |
Citation | 160 P. 610,58 Okla. 585,1916 OK 854 |
Parties | ST. LOUIS & S. F. R. CO. v. TALIAFERRO. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
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.
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 therein authorized, it will be sufficient.
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.
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, § 5248).
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, of St. Louis, Mo., R. A. Kleinschmitt and E. H Foster, both of Oklahoma City, and Kennamer & Coakley, of Madill, for plaintiff in error.
Minter & Falkner, of Madill, and P. T. McVay, of Oklahoma City, for defendant in error.
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 section 5324, art. 29, c. 60, Revised Laws 1910; which sections are as follows:
Undoubtedly these sections require that such order 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.
The law regulating appeals by petition in error with case-made attached is found in article 25, c. 60, Revised Laws 1910. Section 5241 of said article is as follows:
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."
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.
In Holmberg v. Will, 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 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."
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 Okl. 700, 119 P. 244, in the first paragraph of the syllabus:
"A otherwise called a or a or, more frequently, a 'case,' is a statutory method of preparing a 'record' for appellate review.
And in the body of the opinion it was said:
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."
In Shumaker et al. v. O'Brien, 19 Kan. 476, the Supreme Court of Kansas said:
And again in Neiswender v. James, 41 Kan. 463, 21 P. 573, the court said:
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