Opinion
No. 20414
Opinion Filed October 8, 1929. Rehearing Denied November 19, 1929.
(Syllabus.)
1. Appeal and Error — Appeal by Transcript — Requisites of Clerk's Certificate.
In case of appeals by transcript, the certificate of the clerk must show affirmatively that it is a full, true, and correct transcript of the record.
2. Same — Motions and Rulings not Part of Record Proper.
A motion presented in the trial court, rulings thereon, and exceptions thereto, are not properly a part of the record and can only be presented to this court for review by case-made or bill of exceptions, and when not so presented, the ruling of the trial court on such motion will not be reviewed by this court.
Error from District Court, McCurtain County; George T. Arnett, Judge.
Action by Emma M. Ward, nee Harris, et al. against Charles Weathers et al. From the order of the trial court dismissing plaintiffs' amended petition, they appeal. Dismissed.
W.T. Williams and J. N. Fortner, for plaintiffs in error.
E.C. Armstrong, for defendants in error.
This is an attempt to appeal from an order of the district court of McCurtain county dismissing plaintiffs' first amended petition. The order appealed from was made on motion of the defendants based upon the ground that the demurrer had been sustained to plaintiffs' petition, and the plaintiffs having elected to plead further, the amended petition failed to set out any new grounds for relief. The appeal is by transcript, and the certificate thereto fails to show affirmatively that it is a full, true, and correct transcript of the whole record. It certifies that, "The foregoing is a full, true, and correct transcript of all the record and proceedings in the above-entitled cause, on the hearing of the motion of the defendants herein to dismiss plaintiffs' first amended petition filed in said cause." The record as presented does not contain the original petition or the order sustaining the demurrer thereto, and the only assignment of error presented in the petition in error is to the effect that the court erred in sustaining the motion to dismiss the amended petition and in dismissing the same. Under this condition of the record, this court cannot determine the question raised by this appeal, though the record was properly certified.
The record presented does not show that the whole record is not presented, but, on the contrary shows affirmatively that the whole record is not presented, and the certificate of the clerk shows affirmatively that the whole record is not presented, and in case of appeal by transcript the whole record must be presented and the certificate of the clerk must affirmatively so show. McGuire v. Rash, 89 Okla. 132, 241 P. 698, and cases therein cited. No attempt is made to incorporate in the transcript a bill of exceptions or to bring the record here by case-made, and it is well settled that motions and orders thereon are no part of the judgment roll and cannot be brought into this court for review except by bill of exceptions or case-made. McGuire v. Rash, supra; Harris v. Tupeker, Adm'r, et al., 96 Okla. 117, 220 P. 634, and cases therein cited.
The purported transcript attached to the petition in error presents nothing to this court for review, and the appeal is dismissed.
Note. — See "Appeal and Error," 4 C. J. § 1730, p. 124, n. 46; § 2154, p. 441, n. 33.