Lester v. J. J. Gwin Co.

This cause is before the court on a motion to dismiss the appeal for the reason the record presented for review does not contain a copy of the order overruling the motion for new trial.

An examination of the record presented fails to disclose a copy of the order overruling the motion for new trial. The only showing that the motion for new trial was overruled is by a copy of the clerk's minutes as shown by the minute book kept by the clerk, and which are not shown to have been recorded in the journal of the court.

This court in a number of cases has held that the clerk's minutes, though copied into the record presented to this court, are insufficient to show the overruling of the motion for new trial. Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067; Merchants' Southwest Fireproof Warehouse Co. v. Johnston,113 Okla. 146, 243 P. 186; City of Tulsa v. Kay, 124 Okla. 244, 255 P. 684; Argentoes v. Fidelity Bldg. Loan Ass'n, 127 Okla. 183, 260 P. 55; Alexander v. First Nat. Bank of Duncan, 136 Okla. 251,277 P. 667; Cunningham v. McCray, 137 Okla. 300, 279 P. 354.

We have also frequently held that it is necessary for the record presented to have incorporated therein a copy of the order overruling the motion for new trial. Lillard v. Meisberger, supra; City of Tulsa v. Kay, supra; Argentoes v. Fidelity Bldg. Loan Ass'n, supra; Alexander v. First Nat. Bank of Duncan, supra; Cunningham v. McCray, supra.

The record is certified by the court clerk as a transcript and in the petition in error is assigned error that may be reviewed upon transcript. Had the petition in error been filed within the time allowed by law, the judgment roll could be reviewed. The judgment was rendered on the 12th day of March, 1929, and the appeal lodged in this court October 8, 1929. The motion for new trial and the proceedings had thereon are no part of the transcript, and this court is without jurisdiction to review the judgment appealed from. Brigham v. Davis,126 Okla. 90, 258 P. 740.

For the reason the record does not contain an order overruling the motion for new trial, we cannot review errors occurring during the trial of the cause, and for the reason the appeal was not filed in this court within the six months from the date of the judgment sought to be reviewed, this court is without jurisdiction to review the same, and the appeal is dismissed.

Note. — See "Appeal and Error," 3 C. J. § 1050, p. 1051, n. 9; 4 C. J. § 1689, p. 93, n. 50; § 1769, p. 161, n. 78. "New Trial," 46 C. J. § 506, p. 433, n. 96.