Whitaker v. Chestnut

The plaintiff, W.J. Whitaker, obtained a judgment against the defendant, H.M. Chestnut, in the district court of Mayes county by default. Afterwards, by special appearance, the defendant moved the court to vacate and set aside the judgment, which motion was by the court sustained. The plaintiff attempts to appeal to this court by petition in error and transcript.

In Orr v. Fulton, 52 Okla. 621, 153 P. 149, it is said:

"A motion to vacate a judgment copied into a transcript constitutes no part of the record, and presents no question for review by the Supreme Court on appeal."

In Menten v. Shuttee, 11 Okla. 381, 67 P. 478, the Supreme Court of the territory of Oklahoma says:

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

Such is the uniform holding of this court, as shown by the following authorities: Tribal Developing Company v. White Bros., 28 Okla. 525, 114 P. 736; McCoy v. McCoy,27 Okla. 372, 112 P. 1040; Veverka v. Frank et al., 41 Okla. 142,137 P. 682; Grady County v. Schrock et al., 53 Okla. 144,155 P. 882.

We have no discretion.

Following the authorities cited, the appeal is dismissed.

By the Court: It is so ordered.