Tribal Dev. Co. v. Brothers

• Decision Date: 21 March 1911
• Docket Number: Case Number: 1435
• Parties: TRIBAL DEVELOPMENT CO. et al. v. WHITE BROS. et al.
• Court: Oklahoma Supreme Court

1911 OK 117

114 P. 736

28 Okla. 525

TRIBAL DEVELOPMENT CO. et al. v. WHITE BROS. et al.

Case Number: 1435

Supreme Court of Oklahoma

Decided: March 21, 1911

Syllabus

¶0 1. APPEAL AND ERROR--Record--Motions Presented in Trial Court. Motions presented in the trial court, including a motion for a new trial and the ruling thereon and exceptions taken are not a part of the record proper, and can be preserved and presented for review on appeal only by incorporating the same into a bill of exceptions or case-made.

2. APPEAL AND ERROR--Record Proper. Under the uniform ruling in this jurisdiction, the record proper is made up of the petition, the process, return, pleadings subsequent thereto, reports, verdicts, orders, and judgments, and an error appearing upon the face thereof may be raised for the first time in this court on a transcript thereof accompanied by a petition in error duly presenting the same.

3. APPEAL AND ERROR--Reservation of Grounds of Review. While the trial court may under a motion for a new trial duly filed to the report of a referee examine the evidence for the purpose of correcting errors occurring on the trial, this court may not do so unless the motion for new trial and the ruling thereon is brought into the record either by bill of exceptions or case-made.

4. APPEAL AND ERROR--Review--Presumptions. Where it appears from the record that a referee was appointed and made his report with his findings of fact and conclusions of law and the trial court has rendered judgment thereon, but the order making the appointment is not in the record, this court, on appeal for the purpose of sustaining the judgment entered, will presume the order of reference to be in all respects sufficient to support the judgment.

5. REFERENCE--Conclusions of Law By Referee--Effect. The conclusions of law made by a referee on his findings of fact are in no particular binding upon the trial court, and they may be set aside or modified to any extent without a re-reference of the case or report to the referee.

6. REFERENCE--Report and Findings--Correction--Authority of Court. The authority of a court to correct the findings of fact made by a referee, where the evidence is before it, is confined to those cases where the court may do so either under a stipulation by the parties or where, under section 5811, Comp. Laws of Oklahoma, 1909, it may direct a reference without the consent of the parties and to equitable actions where the parties have consented to the reference.

On rehearing. Former opinion set aside and motion to dismiss writ of error denied.

DUNN, J.

¶1 In the above-entitled cause an opinion was delivered by this court September 21, 1910, sustaining a motion to dismiss the proceeding in error. 111 P. 195. The case has again been brought to our attention on a motion for rehearing. The case was submitted to a referee for trial, and the evidence taken before him was brought into the record by a bill of exceptions and the report duly filed. On the coming in of the report, the court considered the same and amended the findings of fact in some particulars and affirmed them in others, and rendered judgment thereon. Thereafter, and in due time, the case was lodged in this court on a transcript of the record with a petition in error. Among the papers there appears a number of motions and orders made thereon, in which is a motion for a new trial purporting to have been filed by the plaintiff in error. This court held that the assignments in the petition in error were such that the errors complained of could only be raised by a motion for a new trial duly passed on, and it, with the order made, brought into the record either by bill of exceptions or case-made; that, this not having been done, the errors assigned were not subject to review by this court. Counsel in their petition for rehearing urge that the motion for new trial is a part of the record proper, and that it is unnecessary to prepare a bill of exceptions to preserve the same with the order made thereon in the appeal record in order that this court might acquire jurisdiction to consider errors occurring on the trial. Under the uniform holding of the territorial Supreme Court, which has been followed by this court, this claim cannot be sustained.

¶2 Section 4308, Statutes of 1893 (section 5939, Compiled Laws of Oklahoma 1909), provides:

"The record shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court," etc.

¶3 Under this statute, it has been held that motions and orders thereon are not part of the record proper, and can be made part of the appeal record only by bill of exceptions or case-made, the ruling being stated in the case of Menten v. Shuttee et al., 11 Okla. 381, 67 P. 478, as follows:

"Motions presented in the trial court, the rulings thereon, and exceptions are not properly part of the record, and can only be preserved and presented for review on appeal by incorporating the same into a bill of exceptions or case-made. The record proper in a civil action consists of the petition, answer, reply, demurrers, process, rulings, orders, and judgment; and incorporating motions, affidavits, or other papers into a transcript will not constitute them a part of the record unless made so by a bill of exceptions. Motions and proceedings which are not part of the record proper, can only be presented for review by incorporating them into a case-made, or by preserving them by bill of exceptions and embracing them in the transcript."

¶4 To the same effect, see McMeachan v. Christy, 3 Okla. 301, 41. P. 382; Black v. Kuhn, 6 Okla. 87, 50 P. 80; Kingman & Co. v. Pixley, 7 Okla. 351, 54 P. 494; McCarthy v. Bentley, 16 Okla. 19, 83 P. 713; Devault et al. v. Merchants' Exch. Co., 22 Okla. 624, 98 P. 342; Green et al. v. Incorporated Town of Yeager, 23 Okla. 128, 99 P. 906; Davis v. Lammers et al., 23 Okla. 338, 100 P. 514; Lamb et al. v. Young et al., 24 Okla. 614, 104 P. 335; Leforce v. Andrews et al., 4 Indian Terr. 96, 69 S.W. 812. In the case last cited, the United States Court of Appeals for the Indian Territory announced the same rule, and in discussing it said:

"The motion for a new trial is not made a part of the record by a bill of exceptions. If the appellant desired to have the action of the lower court reviewed, the motion for a new trial should have been filed in the court below, and that motion made a part of the record in the case by setting the same out in full in the bill of exceptions. 'The motion for new trial is necessary to enable the trial court to correct such errors growing of the trial as do not appear on the face of the record proper, as where it is insisted that there is no evidence to support the verdict, or that the verdict is against the law and the evidence, or that the evidence does not authorize the judgment, or that there is an error in the verdict of the jury, or where it is alleged that the court erred in matter of law either in admitting or rejecting evidence or in giving or refusing instructions.' Thompson on Trials, $ S 2712."

¶5 From the foregoing authorities, it is made manifest that as none of the motions filed and the orders made thereon, including the motion for a new trial, have been so preserved, the questions arising thereon are not before us for our consideration. The record before us on the transcript is made up of the pleadings, the report of the referee both on his findings of fact and conclusions of law, and the judgment of ...