Bell v. Powell

This is an appeal from the order of the district court of Pawnee county discharging an attachment upon motion of the defendant in the action, whose property has been levied upon by the attachment order. The plaintiff in error was the plaintiff in the trial court and the appeal is by transcript in which no bill of exceptions is incorporated.

The cause is now 'before the court on motion of the defendant in error to dismiss the appeal for the reason the order appealed' from cannot be reviewed upon transcript. Motions presented in the trial court, the rulings thereon, and exceptions are not properly a part of the record proper and can only be preserved and presented for review on appeal by incorporating the same in a bill of exceptions or case-made. The record proper in a civil action consists of a petition, answer, reply, demurrer, process, rulings, orders, and judgment, and incorporating motions, affidavits, or other papers into a transcript will not constitute them a part of the record unless made so by bill of exceptions. Motions and proceedings which are not a part of the record proper can only be presented for review by incorporating them in a case-made or by preserving them by bill of exceptions and embracing them in a transcript. Stonebraker-Zea Cattle Co. v. Hilton,34 Okla. 225, 124 P. 1062 . In the case of Holloway v. O'Dell, 131 Okla. 38,267 P. 620, the rule above cited was approved and abridged as follows:

"Motions presented in 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 on appeal to the Supreme Court by incorporting the same in a bill of exceptions or case-made."

The rule thus announced applied to motions to dissolve an attachment. In the case of Lamb v. Young, 24 Okla. 614,104 P. 335, this court announced the rule as follows:

"A motion to discharge property from an attachment is not a part of the record unless made so by bill of exceptions or case-made."

The assignments of error in the petition in error are all based upon the action of the trial court in making the order dissolving the attachment, and under the rule above announced the alleged errors complained of cannot be reviewed by transcript, and the appeal is dismissed.