Walcher v. Stone
Decision Date | 11 January 1905 |
Citation | 15 Okla. 130,79 P. 771,1905 OK 5 |
Court | Oklahoma Supreme Court |
Parties | JAMES E. WALCHER, non compis mentis, by MATTIE E. WALCHER, his next friend, v. FANNIE M. STONE et al. |
¶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:
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:
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.
¶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:
¶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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