Montgomery v. Wm. Cameron & Co.

Supreme Court of Oklahoma

Montgomery v. Wm. Cameron & Co.

1915 OK 758, 152 P. 398, 49 Okla. 179, 1915 Okla. LEXIS 28

CourtSupreme Court of Oklahoma

DecidedOctober 12, 1915

Docket4801

StatusPublished

Cited by3 cases

This text of 1915 OK 758 (Montgomery v. Wm. Cameron & Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Montgomery v. Wm. Cameron & Co., 1915 OK 758, 152 P. 398, 49 Okla. 179, 1915 Okla. LEXIS 28 (Okla. 1915).

Pincite

Opinion

*180 KANE, C. J.

The plaintiffs in error in their petition in error complain of a certain judgment by default rendered against them in a certain suit upon a promissory note and to foreclose a mortgage given to secure the same, wherein the First National Bank of Hawarden, Iowa, was plaintiff, the defendant in error was intervener, and the plaintiffs in error were defendants. Counsel for ■ plaintiffs in error in their brief present many grounds for reversal, but as they have prosecuted their appeal by filing a petition in error with a transcript of the record attached thereto, only a very few of them are reviewable. It is well settled that:

“Motions presented in the trial court, the rulings thereon, and exceptions thereto are not properly a part of the record, and can only be presented and preserved for review on appeal to the Supreme Court by incorporating the same in the bill of exceptions or case-made.” (Green et al. v. Incorporated Town of Yeager, 23 Okla. 128, 99 Pac. 906.)

Only errors appearing upon the face of the record proper may be reviewed by the Supreme Court on a transcript of the record, accompanied by a petition in error. Tribal Development Co. v. White Bros., 28 Okla. 528, 114 Pac. 736. The reviewable assignments of error upon which plaintiffs in error rely for reversal all go to the sufficiency of the process issued below to confer jurisdiction over the persons of the defendants upon the trial court. Without specifically noticing the nature of the defects urged against the process it is sufficient to say upon this point that after the rendition of the judgment by default against them defendants appeared and moved the trial court to set the same aside upon both jurisdictional and non jurisdictional grounds. It is well settled that:

*181 ‘Where a party against whom a judgment is rendered files a motion to vacate the same upon the ground that the trial court has no jurisdiction” over his person, “and said motion' is based upon non jurisdictional as well as jurisdictional grounds, held, that' thereby said party enters a general appearance, as though said appearance, had been made at the trial.” (Pratt v. Pratt, 41 Okla. 577, 139 Pac. 261; Ziska v. Avey, 36 Okla. 405, 122, Pac. 722.)

For the reason stated the judgment of the court below is affirmed.

All the Justices concur.

Free access — add to your briefcase to read the full text and ask questions with AI

*180 KANE, C. J.

The plaintiffs in error in their petition in error complain of a certain judgment by default rendered against them in a certain suit upon a promissory note and to foreclose a mortgage given to secure the same, wherein the First National Bank of Hawarden, Iowa, was plaintiff, the defendant in error was intervener, and the plaintiffs in error were defendants. Counsel for ■ plaintiffs in error in their brief present many grounds for reversal, but as they have prosecuted their appeal by filing a petition in error with a transcript of the record attached thereto, only a very few of them are reviewable. It is well settled that:

“Motions presented in the trial court, the rulings thereon, and exceptions thereto are not properly a part of the record, and can only be presented and preserved for review on appeal to the Supreme Court by incorporating the same in the bill of exceptions or case-made.” (Green et al. v. Incorporated Town of Yeager, 23 Okla. 128, 99 Pac. 906.)

Only errors appearing upon the face of the record proper may be reviewed by the Supreme Court on a transcript of the record, accompanied by a petition in error. Tribal Development Co. v. White Bros., 28 Okla. 528, 114 Pac. 736. The reviewable assignments of error upon which plaintiffs in error rely for reversal all go to the sufficiency of the process issued below to confer jurisdiction over the persons of the defendants upon the trial court. Without specifically noticing the nature of the defects urged against the process it is sufficient to say upon this point that after the rendition of the judgment by default against them defendants appeared and moved the trial court to set the same aside upon both jurisdictional and non jurisdictional grounds. It is well settled that:

*181 ‘Where a party against whom a judgment is rendered files a motion to vacate the same upon the ground that the trial court has no jurisdiction” over his person, “and said motion' is based upon non jurisdictional as well as jurisdictional grounds, held, that' thereby said party enters a general appearance, as though said appearance, had been made at the trial.” (Pratt v. Pratt, 41 Okla. 577, 139 Pac. 261; Ziska v. Avey, 36 Okla. 405, 122, Pac. 722.)

For the reason stated the judgment of the court below is affirmed.

All the Justices concur.

Cite This Page — Counsel Stack

Bluebook (online)

1915 OK 758, 152 P. 398, 49 Okla. 179, 1915 Okla. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-wm-cameron-co-okla-1915.

Opinion

Related

Cite This Page — Counsel Stack