Opinion
No. 31979.
December 18, 1945.
(Syllabus.)
1. APPEAL AND ERROR — Matters not part of record proper — Necessity for bill of exceptions or case-made.
The opening statement of counsel, motions presented in the trial court, the rulings thereon, and exceptions are not properly a part of the record, and can only be preserved and presented for review on appeal by incorporating the same in a bill of exceptions or case-made. Meeks et al. v. Oklahoma Nat. Bank of Skiatook et al., 129 Okla. 280, 264 P. 609.
2. SAME — Judgment rendered on opening statement not reviewable unless statement made part of record.
A judgment rendered upon the opening statement of counsel will not be reviewed by this court upon appeal unless the opening statement of counsel has been included in the record and made a part thereof by case-made or bill of exceptions.
Appeal from County Court, Creek County; S.M. Cunningham, Judge.
Action by Milton McIntosh, administrator of the estate of Hattie Harrison, formerly Hattie Scruggs, deceased, against the V. L. Investment Company, a partnership composed of Wendell List and Lester List. Judgment for defendant, and plaintiff appeals. Appeal dismissed.
B.C. Franklin, of Tulsa, for plaintiff in error.
L.K. Pounders, of Bristow, for defendant in error.
This is an action commenced by plaintiff in error against defendant in error, for the recovery of money.
Issues were joined and the cause came on for trial. The parties appeared and announced ready for trial and a jury was impaneled to try the issues. Counsel for plaintiff made his opening statement. Counsel for defendant then moved the court for judgment for defendant upon the opening statement of counsel for plaintiff. The motion was sustained, whereupon the court directed the jury to return a verdict for defendant, which was done, and judgment was entered for defendant on the verdict.
Plaintiff appeals and complains of error of the trial court in directing a verdict for defendant. To the petition in error, plaintiff attached a certified transcript of the record. But there is no bill of exceptions making the opening statement and the motion for judgment a part of the record. The opening statement of counsel, motions before the trial court, and the rulings thereon, and exceptions thereto are not 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. Meeks v. Oklahoma Nat. Bank, 129 Okla. 280, 264 P. 609; Adams v. Daniels et al., 176 Okla. 142, 54 P.2d 607; Collinsville Nat. Bank v. Ward, 96 Okla. 140, 220 P. 864.
Incorporation of motions, affidavits, and other papers into a transcript will not make them a part of the record unless made so by bill of exceptions. Meeks v. Oklahoma Nat. Bank, supra.
The opening statement of counsel for plaintiff and the motion for judgment not being a part of the record proper and not being made a part thereof by appropriate statutory proceedings, it follows that the error complained of is not open to review. Collinsville Nat. Bank v. Ward, supra.
For the reasons stated, the appeal is dismissed.
GIBSON, C.J., HURST, V.C.J., and WELCH, CORN, DAVISON, and ARNOLD, JJ., concur.