Sumner v. Sherwood

Supreme Court of Oklahoma

Sumner v. Sherwood

1909 OK 296, 105 P. 642, 25 Okla. 70, 1909 Okla. LEXIS 138

CourtSupreme Court of Oklahoma

DecidedNovember 9, 1909

Docket145

StatusPublished

Cited by11 cases

This text of 1909 OK 296 (Sumner v. Sherwood) 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

Sumner v. Sherwood, 1909 OK 296, 105 P. 642, 25 Okla. 70, 1909 Okla. LEXIS 138 (Okla. 1909).

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Opinion

Hates, J.

This is an action in replevin brought originally by defendant in error in the probate court of Oklahoma county, where judgment was rendered in his favor before the admission of the state. Prom the judgment of the probate court, plaintiffs in error, defendants in that court, appealed to the district court. Upon motion of defendant in error, the district court, on April 22, 1906, rendered judgment dismissing the appeal. On April 15, 1908, plaintiffs in error began this proceeding in error in this court by filing herein their petition in error, accompanied by a transcript. It thus appears that the proceeding in this court was not begun within one year from the rendition of the judgment of dismissal in the lower court, as is required by section 4748, Wilson’s Rev. & Ann. St. 1903. By reason of the provisions of said section and the numerous decisions of this court construing the same, this case must be dismissed. Court of Honor v. Wallace, 23 Okla. 734, 102 Pac. 111; McMurtry v. Bird et al., 23 Okla. 597, 101 Pac. 1117; School District v. Fisher et al., 23 Okla. 9, 99 Pac. 646.

*71 On April 26, 1906, after .the rendition of judgment of dismissal, plaintiffs in error filed in the trial court a motion to set aside and vacate the judgment of dismissal. This motion has been improperly certified by the clerk as a part of. the transcript of the record in the trial court. If the court ever acted upon this motion, the record before us does not contain his order thereon.' ■ Plaintiffs in error, however, complain in their assignment of errors- of the action of the court in overruling said motion; but such action of the court, if made, could not be reviewed by this court, except by petition in error and case-made. Motions and orders thereon, constitute no part of the record proper.- Devault v. Merchant’s Exch. Co., 22 Okla. 624, 98 Pac. 342.

The cause will be dismissed.

All the Justices concur.

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Hates, J.

This is an action in replevin brought originally by defendant in error in the probate court of Oklahoma county, where judgment was rendered in his favor before the admission of the state. Prom the judgment of the probate court, plaintiffs in error, defendants in that court, appealed to the district court. Upon motion of defendant in error, the district court, on April 22, 1906, rendered judgment dismissing the appeal. On April 15, 1908, plaintiffs in error began this proceeding in error in this court by filing herein their petition in error, accompanied by a transcript. It thus appears that the proceeding in this court was not begun within one year from the rendition of the judgment of dismissal in the lower court, as is required by section 4748, Wilson’s Rev. & Ann. St. 1903. By reason of the provisions of said section and the numerous decisions of this court construing the same, this case must be dismissed. Court of Honor v. Wallace, 23 Okla. 734, 102 Pac. 111; McMurtry v. Bird et al., 23 Okla. 597, 101 Pac. 1117; School District v. Fisher et al., 23 Okla. 9, 99 Pac. 646.

*71 On April 26, 1906, after .the rendition of judgment of dismissal, plaintiffs in error filed in the trial court a motion to set aside and vacate the judgment of dismissal. This motion has been improperly certified by the clerk as a part of. the transcript of the record in the trial court. If the court ever acted upon this motion, the record before us does not contain his order thereon.' ■ Plaintiffs in error, however, complain in their assignment of errors- of the action of the court in overruling said motion; but such action of the court, if made, could not be reviewed by this court, except by petition in error and case-made. Motions and orders thereon, constitute no part of the record proper.- Devault v. Merchant’s Exch. Co., 22 Okla. 624, 98 Pac. 342.

The cause will be dismissed.

All the Justices concur.

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Bluebook (online)

1909 OK 296, 105 P. 642, 25 Okla. 70, 1909 Okla. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sumner-v-sherwood-okla-1909.

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