Walcher v. Stone

Decision Date11 January 1905
Citation15 Okla. 130,79 P. 771,1905 OK 5
CourtOklahoma Supreme Court
PartiesJAMES E. WALCHER, non compis mentis, by MATTIE E. WALCHER, his next friend, v. FANNIE M. STONE et al.
Syllabus

¶0 1. APPEAL--Transcript--Clerk's Certificate. A transcript of the record is not sufficiently authenticated unless the clerk's certificate states that it contains all the records and proceedings in the case.

2. SAME Motion to Withdraw. A motion for leave to withdraw the certificate of the clerk for the purpose of having the same amended, comes too late when more than one year has elapsed since the rendition of the judgment from which an appeal is taken.

Buckner & Son, for plaintiff in error.

Dale & Bierer, for defendant in error.

STATEMENT OF FACTS.

This case comes to this court by petition in error and transcript from the Logan county district court. The plaintiff complains of an order of said court sustaining the demurrer to the petition of the plaintiff in error. The certificate of the clerk to said transcript, is as follows:

"Territory of Oklahoma, County of Logan, ss. In the district court thereof.

"I, T. A. Neal, clerk of the district court of Logan county, Oklahoma Territory, do hereby certify that the above and foregoing is a true, correct and complete copy of the order and judgment of said court in the therein entitled cause. James E. Walcher et al. v. Fannie M. Stone et al., No. 3631, in said court, as the same appears of record and on file D. 1903.

"In witness whereof I have hereunto set my hand and affixed the seal of said court, at the city of Guthrie, in said county and Territory, this seventeenth day of November, A. D. 1903.

"(SEAL)

"T. A. NEAL, Clerk.

"By FLORENCE N. WEIRICK, Deputy."

This transcript seems to be accompanied and have attached thereto, two certificates of the clerk of the district court, from which we presume that the latter is intended as an amended or supplemental certificate. The latter certificate reads as follows:

"Territory of Oklahoma, County of Logan, ss. In the district court thereof.

"I, T. A. Neal, clerk of the district court of Logan county, Oklahoma Territory, do hereby certify that the above and foregoing is a true, correct and complete copy of the petition and demurrer in the cause of James E. Walcher etc., v. Fannie M. Stone, et al., No. 3631, in said court as the same appears on file in my office.

"In witness whereof I have hereunto set my hand and affixed the seal of said court, at the city of Guthrie, in said county and territory, this ninth day of February, A. D. 1904.

"(SEAL)

"T. A. NEAL, Clerk.

"By FLORENCE N. WEIRICK, Deputy."

Error from the District Court of Logan County; before John H. Burford, Trial Judge.

Buckner & Son, for plaintiff in error.

Dale & Bierer, for defendant in error.

IRWIN, J.

¶1 The first proposition which is presented for our consideration is the motion of the defendant in error to dismiss for insufficiency of the certificate of the clerk, and because no proper or sufficient record is presented whereon this court can review the action of the district court, and accompanying this motion to dismiss is a motion made on the part of the plaintiff in error for leave to withdraw the certificate of the clerk from the files in this court, for the purpose of having the same amended. This court, in the case of Wade v. Mitchell, being No. 1319, decided at the June term, 1904, of this court, held that such certificates as those described in the record in the case at bar, were insufficient to present such a record as would authorize this court to review the action of the district court. This court, in that opinion decided that a certificate of the clerk which states that a transcript contains "a full, true and correct copy of the petition, demurrer, and journal entry" is sufficient. We take the rule to be well established, and supported by an almost unbroken line of authorities, that nothing short of a full transcript of all the proceedings is sufficient to bring the alleged error up for review, and that such a full and complete transcript of all the pleadings must be evidenced by the certificate of the clerk, and the certificate must contain language which shows this fact. The statutes of this Territory providing for appeals and writs of error to the supreme court was adopted from the state of Kansas, and hence any rule of construction that has been adopted and generally followed by the supreme court of that state, prior to its adoption by this Territory, was adopted with the statute by the legislature of this Territory, and is recognized as a binding rule of construction upon this court.

¶2 In the case of William Eckert v. Hannah P. McBee, 25 Kan. 705, the supreme court of that state say:

"Where a bill of exceptions purports to incorporate therein the pleadings, journal entries, and other matters which of themselves are a part of the record, but the certificate of the clerk is merely to the effect that the foregoing is the true bill of exceptions on file in his office in the cause, the supreme court cannot reverse the judgment of the court below, as no case made or certified transcript of the record is attached to or filed with the petition in error."

¶3 In the case of Westbrook vs. Schmans, reported in 32 P. 892, the Kansas supreme court say;

"Where the record brought up for review of the rulings of the district court is based upon a transcript, it is essential that it shall contain all the proceedings of the case as shown by the record in the court below, and that it is a complete transcript, must appear from the certificate of the clerk."

¶4 And that court used the following language:

"This proceeding was brought to review the rulings and judgment of the district court of Butler county in an action to quiet title. The right to a review is challenged on account of the insufficiency of the record. The petition in error is based upon a transcript, instead of a casemade, and the clerk, in the certificate attached, certifies that it is a full, true, and correct copy of certain proceedings had in said court in the case therein entitled as the same appears of record in my office. The certificate fails to show that the record contains a complete transcript of the proceedings in the cause. Nothing short of a full transcript of all the proceedings is sufficient, and that it is a complete transcript must appear from the certificate of the clerk."

¶5 In the case of Todd v. Gurney Ranch Co., reported in the 53 P. page 789, the Kansas supreme court say:

"A
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9 cases
  • City of Wagoner v. Gibson
    • United States
    • Oklahoma Supreme Court
    • February 6, 1912
    ... ... Abel v. Blair, 3 Okla. 399, 41 P. 342; Bruce v. Casey-Swasey Co., 13 Okla. 554, 75 P. 280; Wade et al. v. Mitchell, 14 Okla. 168, 79 P. 95; Walcher v. Stone et al., 15 Okla. 130, 79 P. 771; Williamson v. Williamson, 15 Okla. 680, 83 P. 718; Mutual Trust Company v. Farmers' Loan & Security Co., 27 ... ...
  • Seibold v. City of Muskogee
    • United States
    • Oklahoma Supreme Court
    • February 9, 1932
    ...for failure to conform to the provisions of the statute. ¶20 The rule announced by the territorial Supreme Court in Walcher v. Stone, 15 Okla. 130, 79 P. 771, that a motion for leave to withdraw a certificate of the clerk to a transcript for the purpose of having the same amended comes too ......
  • Mcguire v. Rash
    • United States
    • Oklahoma Supreme Court
    • April 3, 1923
    ... ... Halsell, 43 Okla. 402, 143 P. 193; Wade et al. v. Mitchell, 14 Okla. 168, 79 P. 95; Bruce v. Casey-Swasy Co., 13 Okla 554 75 P. 280; Walcher v. Stone, 15 Okla. 130, 79 P. 771; Fortune v. Parks et al., 29 Okla. 698, 119 P. 134; E. G. Rall Grain Co. v. First State Bank, 39 Okla. 788. 136 P ... ...
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    • November 18, 1913
    ... ... is not sufficiently authenticated unless the clerk's certificate states that it contains all the records and proceedings in the case." (Walcher v. Stone, 15 Okla. 130, 79 P. 771.) The certificate under consideration, measured by this rule, is insufficient. The next ground in the motion to ... ...
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