Olentine v. Powell

1909 OK 62, 100 P. 556, 23 Okla. 363, 1909 Okla. LEXIS 363

• Court: Supreme Court of Oklahoma
• Decided: March 9, 1909
• Docket: 580
• Status: Published

Opinion

Hayes, J.

On the 7th day of May, 1908, Eula Olentine, plaintiff below, commenced her action for divorce against Charles Olentine, defendant below, in the district court of Muskogee county. The record discloses that on the 27th day of July, 1908, the action was settled by agreement of tlie parties to re-enter tlie marriage -relation theretofore existing between them, and all other matters in controversy in the action were disposed of by agreement, except the fee that should be paid to the attorneys for Eula Olentine in that action. An agreement was entered into between the attorneys for the parties to the action to the effect that plaintiff in error, Charles Olentine, should pay such fees to the attorneys for the said Eula Olentine as the district court of Muskogee county should find just and reasonable. On the 4th day of August, 1908, hearing was had before the district court of Muskogee county upon the question of what would be a reasonable fee to be allowed plaintiff’s attorneys. Numerous witnesses were introduced and testified -before the court. At the conclusion of the evidence the record discloses the following:

“That thereupon, on the same day, after hearing the evidence of the above-named witnesses, the said John H. King, judge of the district court of Muskogee county, Okla., found the services performed by the said George K. Powell and Howell Parks to have been reasonably worth, and that said defendant should pay to said George K. Powell and Howell Parks, the sum of $750 in all, to which finding the defendant then and there excepted.”

Appeal has been taken to this court by petition in error and case-made. In the petition in error, George K. Powell and Howell Parks, who were attorneys for Eula Olentine, plaintiff in the court below, are made defendants in error. A motion to dismiss the appeal upon several founds has been filed by defendants in error.

An examination of the ease-made discloses that it contains no copy of any final judgment or order of the court below upon the issues before it, and from the recitals in the record it appears that no final order or judgment has been made. At most, the c-aseunade fails to show that any judgment or final order was rendered by the trial court upon the issues before it. The matters quoted from the case-made above would constitute a finding ox fact upon the issues before the court, but do not constitute any arder thereupon. Where the case-made to be reviewed by this court fails to show that a judgment or final order was rendered by the trial court, or fails to contain a copy of such judgment or final order, such case-made presents nothing to this court for review, and cannot be considered. Board of Commissioners of Custer County v. Robert G. Moon, 8 Okla. 205, 57 Pac. 161; Gardenshire v. Burdick, 7 Okla. 212, 54 Pac. 483; Sproat v. Burland, 7 Okla. 230, 54 Pac. 458.

Other grounds for dismissal are set out in the' motion; but, without a copy of any final judgment or final order of the trial court before us, the same cannot be intelligently considered, and it is unnecessary to attempt to consider the same, since, for the reason already stated, the appeal must be dismissed.

All the Justices concur.