Banta v. Banta

1950 OK 286, 224 P.2d 592, 203 Okla. 580, 1950 Okla. LEXIS 690

• Court: Supreme Court of Oklahoma
• Decided: November 21, 1950
• Docket: No. 34734
• Status: Published

Opinion

HALLEY, J.

This action was commenced to obtain a divorce. The first appeal in this case is found in Banta v. Banta, 202 Okla. 86, 210 P. 2d 346. Therein the court denied a divorce and adjusted certain property rights. The plaintiff, Carl Banta, brought this action, and on March 28, 1950, the trial court granted plaintiff a divorce and refused to grant the defendant any alimony or attorney fee other than had already been allowed therein.

Defendant has appealed. Plaintiff has filed a motion to dismiss for the reason the appeal is not perfected in accordance with law in that no case-made has been served and filed.

The motion to dismiss must be sustained. It is admitted that no case-made has been served and filed. The papers offered with the petition are not certified as a transcript. Defendant states that she has prepared and filed a bill of exceptions. The proposed bill of exceptions was not allowed by an order of the court as required by 12 O.S. 1941 §635, and for this reason is not a part of the record. Adams Royalty Co. v. Faulkner, 176 Okla. 423, 55 P. 2d 1033. In addition, when a bill of exceptions is allowed and filed it can be reviewed only on a duly certified transcript. Adams Royalty Co. v. Faulkner, supra, and cases cited therein.

This court has held many times that where the petition in error is not accompanied by a case-made duly served and filed or by a transcript of the record duly certified, there is nothing for this court to review and the purported appeal will be dismissed, Merry v. Industrial Building & Loan Ass’n et al., 138 Okla. 240, 280 P. 822; Keel v. Keel, 138 Okla. 243, 280 P. 814.

Appeal dismissed.