Williams v. Kelly

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 for new trial; second, the court erred in not 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, being 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 P. 330; Wyant v. Beavers, 63 Okla. 68, 162 P. 732; Miller v. Markley. 49 Okla. 177, 152 P. 345; Vannier v. Frat. Aid Ass'n, 40 Okla. 732. 140 P. 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 case-made unless the motion for judgment in the circumstances of the case may be treated as a demurrer. In some 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 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 P. 906; Whitaker v. Chestnut,63 Okla. 275, 165 P. 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.