State Ex Rel. Pitman v. Fidelity Bldg. & Loan Ass'n

Supreme Court of Oklahoma

State Ex Rel. Pitman v. Fidelity Bldg. & Loan Ass'n

1928 OK 591, 270 P. 842, 133 Okla. 6, 1928 Okla. LEXIS 972

CourtSupreme Court of Oklahoma

DecidedOctober 2, 1928

Docket19615

StatusPublished

This text of 1928 OK 591 (State Ex Rel. Pitman v. Fidelity Bldg. & Loan Ass'n) 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

State Ex Rel. Pitman v. Fidelity Bldg. & Loan Ass'n, 1928 OK 591, 270 P. 842, 133 Okla. 6, 1928 Okla. LEXIS 972 (Okla. 1928).

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Opinion

PER CURIAM.

This is an appeal from an order of the district court of Pottawatomie county denying plaintiff in error's motion to vacate the judgment rendered in the trial court on the 23rd day of February, 1926. On the 13th day of July, 1928, plaintiff in error, ¡whp was defendant below, filed a motion to vacate the judgment so rendered on the 23rd day of February, 1926; a hearing was had on said motion, and on the 14th day of July, Í1928, motion was overruled and denied, and it is from this order the plaintiff in error appeals. The record is brought to this court by transcript attached to the petition in error.

The defendant in error has filed in this court motion to dismiss the appeal for the reason that the errors assigned cannot b'e reviewed upon transcript, and that in order to have the same reviewed the record must be. presented to this court by case-mad'e or bill of exceptions. The only question attempted to be presented to this court by the record filed in this cause is th'e action of the trial court in denying the motion to vacate the judgment, which became final long before the filing of the motion to *7 vacate th'e same. In the case of Holloway v. O’Dell, 131 Okla. 38, 267 Pac. 620, this court, following the rule laid down in the cases of Stonebraker-Zea Cattle Co. v. Hilton, 34 Okla. 225, 124 Pac. 1262, and Richardson v. Beidleman, 33 Okla. 463, 126 Pac. 818, said:

“Motions presented in the trial court, th'e rulings thereon, and exceptions thereto are not properly a part of the record, and can only be preserved and presented for r'eview on appeal” to the Supreme Court “by incorporating the same into a bill of exceptions or ease-made.”

This fule has been consistently followed in a long line of decisions of this court. See Craig v. Greer, Sheriff, 33 Okla. 302, 124 Pac. 1096; Billington v. Grayson, 59 Okla. 182, 158 Pac. 433; Scott v. Woods Lumber Co., 86 Okla. 185, 207 Pac. 449; Davis v. DeGeer, 91 Okla. 111, 216 Pac. 156; United Fig & Date Co. v. Carroll, Brough, Robinson, & Humphrey, 116 Okla. 82, 243 Pac. 211; Brigham v. Davis, 126 Okla. 90, 258 Pac. 740.

That this court may r'eview alleged errors of the trial court in an order denying a motion to vacate judgment, the record must be presented by case-made or bill of exceptions, and unless so presented, this court will not review the same.

The appeal is dismissed.

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PER CURIAM.

This is an appeal from an order of the district court of Pottawatomie county denying plaintiff in error's motion to vacate the judgment rendered in the trial court on the 23rd day of February, 1926. On the 13th day of July, 1928, plaintiff in error, ¡whp was defendant below, filed a motion to vacate the judgment so rendered on the 23rd day of February, 1926; a hearing was had on said motion, and on the 14th day of July, Í1928, motion was overruled and denied, and it is from this order the plaintiff in error appeals. The record is brought to this court by transcript attached to the petition in error.

The defendant in error has filed in this court motion to dismiss the appeal for the reason that the errors assigned cannot b'e reviewed upon transcript, and that in order to have the same reviewed the record must be. presented to this court by case-mad'e or bill of exceptions. The only question attempted to be presented to this court by the record filed in this cause is th'e action of the trial court in denying the motion to vacate the judgment, which became final long before the filing of the motion to *7 vacate th'e same. In the case of Holloway v. O’Dell, 131 Okla. 38, 267 Pac. 620, this court, following the rule laid down in the cases of Stonebraker-Zea Cattle Co. v. Hilton, 34 Okla. 225, 124 Pac. 1262, and Richardson v. Beidleman, 33 Okla. 463, 126 Pac. 818, said:

“Motions presented in the trial court, th'e rulings thereon, and exceptions thereto are not properly a part of the record, and can only be preserved and presented for r'eview on appeal” to the Supreme Court “by incorporating the same into a bill of exceptions or ease-made.”

This fule has been consistently followed in a long line of decisions of this court. See Craig v. Greer, Sheriff, 33 Okla. 302, 124 Pac. 1096; Billington v. Grayson, 59 Okla. 182, 158 Pac. 433; Scott v. Woods Lumber Co., 86 Okla. 185, 207 Pac. 449; Davis v. DeGeer, 91 Okla. 111, 216 Pac. 156; United Fig & Date Co. v. Carroll, Brough, Robinson, & Humphrey, 116 Okla. 82, 243 Pac. 211; Brigham v. Davis, 126 Okla. 90, 258 Pac. 740.

That this court may r'eview alleged errors of the trial court in an order denying a motion to vacate judgment, the record must be presented by case-made or bill of exceptions, and unless so presented, this court will not review the same.

The appeal is dismissed.

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1928 OK 591, 270 P. 842, 133 Okla. 6, 1928 Okla. LEXIS 972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-pitman-v-fidelity-bldg-loan-assn-okla-1928.

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