Conner v. Tailor Leaverett , 24 Okla. 704 ( 1909 )

Turner, J.

This is a suit on a contract for boring a well brought originally in the commissioners’ court by defendants in in error, plaintiffs below, against plaintiff in error, defendant below, which on appeal and trial anew in the United States Court for the Indian Territory, Southern District, at Ada, resulted in a verdict in favor of plaintiffs and against defendant, upon which final judgment was rendered and entered on October 2, 1907. On the same day motion for a new trial and in arrest of judgment were filed and overruled, an appeal prayed and granted, and later supersedeas bond was filed by defendant and approved by the court. Thereafter, at the same term, defendant as plaintiff in error filed his petition for a writ of. error, which said writ was on October 22, 1907, allowed by the Honorable J. T. Dickerson, trial judge, and the same was issued and filed in the.office of the clerk of said court. No citation issued and no return was made to said writ. On February 24, 1908, plaintiff in error filed in this court his petition in error with a transcript of the record of the trial court, .which was duty served on defendants in error. Although the cause has been submitted by both sides on briefs, we cannot entertain jurisdiction of the appeal for the reason that the judgment of the lower court cannot be reviewed by this court under said procedure by petition in error. In Kelley et al. v. McCombs et al. (recently decided by this court), 23 Okla. 867, 102 Pac. 186, it was in effect held that a judgment rendered in a suit in equity in one of the United States Courts in the Indian Territory prior to the admission of the state into the Union could be brought to this court after that time only by appeal, and that the federal appellate procedure in force in said territory by Act Cong. March 3, 1905, governed such appeal. See, also, Parks v. City of Ada, ante, p. 168, 103 Pac. 607.

It follows that as a citation and' writ of error duly returned to this court is indispensable to vest this court with jurisdiction in this cause, and as said petition in error with transcript attached and summons in error brought nothing to this court which we can review, this appeal must be dismissed, and it is so ordered.

All the Justices concur.