Williams v. Kelly

Supreme Court of Oklahoma

Williams v. Kelly

1918 OK 635, 176 P. 204, 71 Okla. 166, 1918 Okla. LEXIS 902

CourtSupreme Court of Oklahoma

DecidedNovember 19, 1918

Docket10011

StatusPublished

Cited by11 cases

This text of 1918 OK 635 (Williams v. Kelly) 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

Williams v. Kelly, 1918 OK 635, 176 P. 204, 71 Okla. 166, 1918 Okla. LEXIS 902 (Okla. 1918).

Pincite

Opinion

OWEN, J.

This is an appeal by transcript. The petition in error contains only two assignments: First, the -court erred ■in overruling the motion of plaintiff in error fpr new trial; second, the court erred in r/ot rendering judgment for plaintiff in error on the pleadings. A motion to dismiss the appeal was filed with proof of service on opposing counsel, to which no response was made.

A motion for new trial, and the action of the court in overruling the same, being1 no part of the record, without case-made or bill of exceptions, cannot be presented to this court by transcript. Collins v. Garvey, 67 Okla. 36, 171 Pac. 330; Wyant v. Beavers, 63 Okla. 68, 162 Pac. 732; Miller v. Markley, 49 Okla. 177, 152 Pac. 345; Vannier v. Frat. Aid Ass’n, 40 Okla. 732 140 Pac. 1021.

As the record proper in a civil action, under our procedure, consists of the petition, answer, reply, demurrers, process, rulings, orders and judgment (Wyant v. Beavers, supra), we cannot consider whether the court erred in overruling the motion for judgment on the pleadings, where such motion and ruling is not made part of the record by bill of exceptions or ease-made unless the motion for judgment in the circumstances of the case may be treated as a demurrer. In seme instances a motion for judgment on the pleadings may be treated as a demurrer, and. as such, would constitute part of the record. But this transcript contains no such motion or the action of the court in overruling same. Nor does it contain an answer, demurrer, or *167 other pleading filed by the defendant. Motions presented to the trial court, the rulings thereon, and exceptions thereto, are not properly a part of the record, and can only be preserved and presented for review in this court by incorporating same in a bill of exceptions or case-made. Green v. Incorporated Town of Yeager, 23 Okla. 129 99 Pac. 906; Whitaker v. Chestnut, 63 Okla. 275, 165 Pac. 160.

In' the absence of a case-made or bill of exceptions, the errors complained of cannot be considered. The motion to dismiss must be sustained, and it is so ordered.

All the Justices concur, except TURNER and BRETT, JJ.. not participating.

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OWEN, J.

This is an appeal by transcript. The petition in error contains only two assignments: First, the -court erred ■in overruling the motion of plaintiff in error fpr new trial; second, the court erred in r/ot rendering judgment for plaintiff in error on the pleadings. A motion to dismiss the appeal was filed with proof of service on opposing counsel, to which no response was made.

A motion for new trial, and the action of the court in overruling the same, being1 no part of the record, without case-made or bill of exceptions, cannot be presented to this court by transcript. Collins v. Garvey, 67 Okla. 36, 171 Pac. 330; Wyant v. Beavers, 63 Okla. 68, 162 Pac. 732; Miller v. Markley, 49 Okla. 177, 152 Pac. 345; Vannier v. Frat. Aid Ass’n, 40 Okla. 732 140 Pac. 1021.

As the record proper in a civil action, under our procedure, consists of the petition, answer, reply, demurrers, process, rulings, orders and judgment (Wyant v. Beavers, supra), we cannot consider whether the court erred in overruling the motion for judgment on the pleadings, where such motion and ruling is not made part of the record by bill of exceptions or ease-made unless the motion for judgment in the circumstances of the case may be treated as a demurrer. In seme instances a motion for judgment on the pleadings may be treated as a demurrer, and. as such, would constitute part of the record. But this transcript contains no such motion or the action of the court in overruling same. Nor does it contain an answer, demurrer, or *167 other pleading filed by the defendant. Motions presented to the trial court, the rulings thereon, and exceptions thereto, are not properly a part of the record, and can only be preserved and presented for review in this court by incorporating same in a bill of exceptions or case-made. Green v. Incorporated Town of Yeager, 23 Okla. 129 99 Pac. 906; Whitaker v. Chestnut, 63 Okla. 275, 165 Pac. 160.

In' the absence of a case-made or bill of exceptions, the errors complained of cannot be considered. The motion to dismiss must be sustained, and it is so ordered.

All the Justices concur, except TURNER and BRETT, JJ.. not participating.

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1918 OK 635, 176 P. 204, 71 Okla. 166, 1918 Okla. LEXIS 902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-kelly-okla-1918.

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