Opinion
No. 19840
Opinion Filed January 8, 1929.
(Syllabus.)
Appeal and Error — Appeal by Transcript — Dismissal of Appeal Where Errors Assigned Require Examination of Evidence.
The evidence introduced in the trial in the court below is no part of the record, unless brought up on a bill of exceptions or case-made, and where the appeal to this court is by transcript and the errors assigned are such as can only be presented by case-made or bill of exceptions, nothing is presented for review, and the appeal will be dismissed.
Error from District Court, Seminole County; George C. Crump, Judge.
Action by Paul D. Cole against Frank Loftis et al. From judgment denying a permanent injunction and dissolving a temporary injunction, plaintiff appeals. Dismissed.
Lester E. Smith, for plaintiff in error.
Anglin Stevenson and Forrest M. Darrough, for defendants in error.
This action was begun in the district court of Seminole county by plaintiff in error, wherein plaintiff sought an injunction against Frank Loftis, as constable of Brown township, in said county, and others, enjoining them from serving a certain execution in his hands as such officer on the grounds the judgment upon which said execution was issued was void.
The cause was tried to the court, evidence introduced upon said trial, and judgment rendered on October 10, 1928, denying plaintiff permanent injunction and dissolving the temporary injunction theretofore issued. The petition in error was filed in this court October 28, 1928, and the assignments of error therein contained are all based upon matters occurring at and during the trial of the cause. The record of the trial court is brought to this court by transcript and incorporated therein is the evidence produced upon the trial of the cause, but no attempt was made to perfect the record as a case-made; nor was the evidence made a part of the record by bill of exceptions.
The evidence introduced at the trial in the court below is no part of the record unless brought up on a bill of exceptions or case-made, and where the appeal to this court is by transcript and the errors assigned are such as can only be presented by case-made or bill of exceptions, nothing is presented for review, and the appeal will be dismissed. Hillery v. Cox, 125 Okla. 124, 256 P. 915; Exchange National Bank v. Merritt et al., 108 Okla. 184, 235 P. 180; Blumenfeld v. Anthis, 107 Okla. 90, 230 P. 228.
The assignments of error incorporated in the petition in error cannot be reviewed upon transcript, but are such as would necessitate an examination of the evidence introduced in the trial court. The evidence not having been presented by case-made or by bill of exceptions, there is nothing before this court for review, and the appeal, upon motion of the defendant in error, is dismissed.