School Dist. No. 1, Pontotoc County v. Vinsant

1911 OK 48, 113 P. 714, 27 Okla. 731, 1911 Okla. LEXIS 40

Opinion

HAYES, J.

A motion of defendant in error to quash the service of summons was sustained by the trial court, and it is from the order quashing the service and dismissing the cause that this proceeding in error is prosecuted. The proceeding has been brought in this court by petition in error, with transcript of the record thereto attached. No bill of exceptions was taken by plaintiff in error, and there is no case-made. The grounds of the mo tion to quash were that defendant in error was a non-resident of the county in which the cause was instituted, and that sendee was made upon him while he was within the county under process of the court. These facts appeared neither from the face of the summons nor the return thereon, but were established by evidence at the hearing upon the motion. The uniform holding of this court 'has been that motions of this character and the orders of the trial court thereon cannot be reviewed by this court unless the motion and the order thereon have been made part of the record either by bill of exceptions or case-made. Green v. Incorporated Town of Yeager, 23 Okla. 128; Devault et al. v. Merchants’ Exchange Co., 22 Okla. 642; Lamb et al. v. Young et al., 24 Okla. 614.

It follows that the proceeding must be dismissed.

All the Justices concur.