American Nat. Bank of Wetumika v. Hale-Halsell Co.

This action was commenced in the district court of Hughes county by the filing of a petition by Hale-Halsell Company against the American National Bank on a certificate of deposit for $2,080. On the 6th day of April, 1934, a demurrer was filed to the petition, and on the 4th day of June, 1934, the court tried the cause, overruling the demurrer, and there was introduced in evidence the certificate of deposit and judgment was rendered for the plaintiff. No notice of intention to appeal was given at this time, or within ten days thereafter. A motion for new trial was filed on the 4th day of June, 1934, and an order overruling the same was made on the 18th day of June, 1934.

A motion to dismiss has been filed, in which movant states that since no notice of appeal was given at the date of the rendition of the judgment or within ten days thereafter, the cause should be dismissed. The appeal is by transcript.

In the case of Chase v. Brynes, 147 Okla. 118, 294 P. 786, the court held that where the appeal is by transcript the motion for new trial and the order overruling the same are no part of the record and where no notice of appeal was given at the date of the rendition of the judgment or within ten days thereafter, the appeal should be dismissed. See, also, Richardson v. Beidleman, 33 Okla. 463, 126 P. 818; Schollmeyer v. Van Buskirk, 35 Okla. 439, 130 P. 138; Brigham v. Davis, 126 Okla. 90,258 P. 740; In re Welfelt's Estate, 142 Okla. 110, 285 P. 843.

The respondent states that the appeal is from the order of the court entered June 4, 1934, overruling the demurrer. The statement is made that the minutes of the clerk show that notice of appeal was given at that time. This court held in the following cases that a mere recital of the clerk's minutes is no part of the record or proceedings: Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067; Nelson v. Pittsburg Mort. Inv. Co., 43 Okla. 208, 141 P. 1197; Waggoner v. Mounts, 44 Okla. 128,143 P. 1196; Springfield Fire Marine Ins. Co. v. Gish, etc., Co.,23 Okla. 824, 102 P. 708; Ellis v. Carr, 25 Okla. 874, 108 P. 1101; Casner v. Smith, 28 Okla. 303, 114 P. 255; Fife v. Cornelous, 35 Okla. 402,124 P. 957; Mobley v. Chicago, R. I. P. Ry. Co., 44 Okla. 788,145 P. 321; Ford v. McIntosh, 22 Okla. 423, 98 P. 341; In re Garland,52 Okla. 585, 153 P. 153; Courtney v. Moore, 51 Okla. 628, 151 P. 1178.

The appeal is therefore dismissed.