Smith v. Henry

Supreme Court of Oklahoma

Smith v. Henry

1923 OK 220, 214 P. 1076, 90 Okla. 7, 1923 Okla. LEXIS 1085

CourtSupreme Court of Oklahoma

DecidedApril 17, 1923

Docket10908

StatusPublished

Cited by1 cases

This text of 1923 OK 220 (Smith v. Henry) 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

Smith v. Henry, 1923 OK 220, 214 P. 1076, 90 Okla. 7, 1923 Okla. LEXIS 1085 (Okla. 1923).

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Opinion

COCHRAN, J.

This action was commenced by the defendant in error to have the title to certain lands, the record title to which was in the plaintiff in error, decreed to be held in trust for defendant in error. Judgment was entered' in the lower court for the defendant in error, and plaintiff: in error has prosecuted this appeal and assigned as error:

“First. The court erred in rendering judgment for the defendant in error.

“Second. The court erred in making his special findings of fact, as they iWiere not warranted by the testimony.

“Third. The court erred in his conclusions of law as applied to the facts in this case as developed by the testimony.”

These assignments cannot be properly considered without an examination of the testimony introduced in the trial of the case and the findings of fact made by the trial court. The brief filed1 by the plaintiff in error does not contain the material parts, of the pleadings, proceedings, or facts so as to enable ns to arrive at a full understanding of the questions presented to this court for a de: cisión without an examination of the record itself, and it is, therefore, not in compliance with rule 26 of this court (47 Okla. x). As said by Mr. Justice Kane in Welch et al. v. Cotton, 67 Okla. 324, 170 Pac. 1174:

“On account of noncompliance with rule 26 of this court, we are unable to say, without an examination of the record, what the views of the trial court were on any of these aspects of the case, nor 'are we in position to say whether or not such views were erroneous. Compliance with this rule has been held to be mandatory many times by this court, and we know of no good reason for departing from these decisions in the case at bar, especially as it appears that •the record is not available for examination by the court, if it desires to do so, it having been withdrawn from the files by counsel for the defendants after the submission of the case and not returned.”

The judgment of the trial court is affirmed.

JOHNSON, C. J., and KANE, KENNA-MER, NICHOLSON, BRANSON, and MASON, JJ., concur.

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COCHRAN, J.

This action was commenced by the defendant in error to have the title to certain lands, the record title to which was in the plaintiff in error, decreed to be held in trust for defendant in error. Judgment was entered' in the lower court for the defendant in error, and plaintiff: in error has prosecuted this appeal and assigned as error:

“First. The court erred in rendering judgment for the defendant in error.

“Second. The court erred in making his special findings of fact, as they iWiere not warranted by the testimony.

“Third. The court erred in his conclusions of law as applied to the facts in this case as developed by the testimony.”

These assignments cannot be properly considered without an examination of the testimony introduced in the trial of the case and the findings of fact made by the trial court. The brief filed1 by the plaintiff in error does not contain the material parts, of the pleadings, proceedings, or facts so as to enable ns to arrive at a full understanding of the questions presented to this court for a de: cisión without an examination of the record itself, and it is, therefore, not in compliance with rule 26 of this court (47 Okla. x). As said by Mr. Justice Kane in Welch et al. v. Cotton, 67 Okla. 324, 170 Pac. 1174:

“On account of noncompliance with rule 26 of this court, we are unable to say, without an examination of the record, what the views of the trial court were on any of these aspects of the case, nor 'are we in position to say whether or not such views were erroneous. Compliance with this rule has been held to be mandatory many times by this court, and we know of no good reason for departing from these decisions in the case at bar, especially as it appears that •the record is not available for examination by the court, if it desires to do so, it having been withdrawn from the files by counsel for the defendants after the submission of the case and not returned.”

The judgment of the trial court is affirmed.

JOHNSON, C. J., and KANE, KENNA-MER, NICHOLSON, BRANSON, and MASON, JJ., concur.

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Bluebook (online)

1923 OK 220, 214 P. 1076, 90 Okla. 7, 1923 Okla. LEXIS 1085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-henry-okla-1923.

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