Green v. Incorporated Town of Yeager , 23 Okla. 128 ( 1909 )

Under our statute, two methods of appeal are provided. Section 4738 of Wilson's Revised and Annotated Statutes of 1903 provides that "the plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original case-made as hereinafter provided, or a copy thereof." Under this section, the appeal may be taken by petition and a transcript or by petition and case-made. In the case at bar, the appeal is taken by the former method, and the sole question presented by the motion to dismiss is whether a motion to dissolve a temporary injunction and the order of the court thereon is a part of the record and may be presented by petition and transcript. In the case cited, supra, by plaintiffs in error, it seems to have been held that a motion to require plaintiffs to plead more specifically and the action of the court thereon is a part of the record and may be presented by transcript; but the rule in this jurisdiction has long been established to the contrary by the numerous decisions of the Supreme Court of the territory of Oklahoma. McMechan v.Christy, 3 Okla. 301, 41 P. 382; City of Kingfisher v. Pratt,4 Okla. 284, 43 P. 1068; Black v. Kuhn, 6 Okla. 87,50 P. 80; Lookabaugh v. La Vance, 6 Okla. 358, 49 P. 65; McCarthyv. Bentley, 16 Okla. 19, 83 P. 713; Menton v.Shuttee, 11 Okla. 381, 67 P. 478.

The opinion in the case last cited was a per curiam opinion, and in it the court uses the following language:

"This court has repeatedly held that only the petition, answer, reply, demurrers, process, orders and judgments are parts of the record, and in order to present motions, affidavits, evidence, instructions, and other preliminary proceedings the same must be brought into the record by bill of exceptions or case-made."

In Lookabaugh v. La Vance, supra, in an opinion delivered by Mr. Justice Bierer, the court held that the action of the court in overruling a motion to quash a summons or motion for change of venue or motion for continuance was not error that could be presented by transcript of the record; and the first paragraph of the syllabus in McCarthy v. Bentley, supra, reads:

"Motions presented in the trial court, the rulings thereon, and exceptions, are not properly part of the record, and can only be presented and preserved for review on appeal to the Supreme Court by incorporating the same into a bill of exceptions or case-made."

It is therefore unnecessary for us to investigate what the rule in Kansas under the same statute is. It has become so well established by the numerous decisions of the Supreme Court of the territory that motions and orders of the court thereon are not part of the record proper that we should feel it our duty not to disturb it, although we should find it in conflict with the rule in that state.

The petition in error in this case complains of nothing that can be reviewed on transcript, and the motion to dismiss is sustained.

All the Justices concur.