Black v. Kuhn , 6 Okla. 87 ( 1897 )

Opinion of the court by This was an action on account in the probate court of Kay county, in which judgment was rendered in behalf of the defendant, and for costs, and appeal taken to the district court by the plaintiff in error. Thereafter, upon motion of the defendant "to dismiss the appeal from the probate court in the above entitled cause for the reason that no appeal lies in such cases to this court," the motion to dismiss the appeal was sustained, to which the plaintiff excepted, and took sixty days to present case made. Assignments of error were that, (1) the court erred in sustaining the motion of defendant to dismiss the appeal and (2), in rendering judgment against the plaintiff in error. The plaintiff brought the case to this court upon a transcript certified by the clerk of the district court to be "a true and complete transcript of all the papers, pleadings, process and orders of the court, as the same appears on file and of record in my office."

The case was filed in this court on the 10th day of January, 1896, and thereafter, upon the 12th day of May, 1896, the defendant in error filed his motion to dismiss the petition in error for the reason, that "it does not conform to the requirements of the statutes of Oklahoma, in that no proper certificate is filed with the transcript thereto annexed, and (2), that it does not show that the court has any jurisdiction to entertain the cause, and that the trial court committed error in its acts in connection with said cause."

The relief sought by the plaintiff in error, is the review of an order of the district court, upon the motion of the defendant in error, "to dismiss an appeal from the probate court in the above entitled cause for the reason that no appeal lies in such cases to this court."

An order of the court upon a motion, cannot be brought to this court for a review upon a transcript of the record. The case is brought here in that manner. It is provided by secs. 4306 and 4307 of the Statutes of 1893, that the record shall be made up of the petition, the process, returns belonging subsequent thereto, reports, verdict, orders, judgment and all material acts and proceedings of the court, and by sec. 3964, that the only pleadings allowed are the petition, and demurrer of the defendant to the reply of the plaintiff. A motion is therefore no part of the record, and cannot be brought here by a transcript of the record. The motion of the defendant in error to dismiss the appeal is sustained, and the meaning of the statutes was thus construed in the case of McMechan v.Christy, 3 Okla. 301.

Bierer, J., who presided in the court below, not sitting; all the other Justices concurring.