Opinion
No. 16140
Opinion Filed April 7, 1925. Rehearing Denied June 23, 1925.
(Syllabus.)
Appeal and Error — Appeal by Transcript — Review of Order on Motion to Vacate Receiver's Appointment.
An order on a motion to vacate the appointment of a receiver is not a part of the record proper and cannot be reviewed by this court on petition in error and transcript.
Error from District Court, Choctaw County; G.M. Barrett, Judge.
Action by the First National Bank of McAlester against W.R. McIntosh. Judgment for defendant, and plaintiff appeals. Dismissed.
J.H. Gordon and Monk McSherry, for plaintiff in error.
A.A. McDonald and A.W. Trice, for defendant in error.
This appeal is by petition in error and transcript to review an order of the trial court vacating the appointment of a receiver in a foreclosure proceeding.
Defendant in error has filed a motion to dismiss the proceedings in error upon the ground that the order sought to be reviewed is no part of the record, and therefore the error assigned cannot be presented by transcript.
This court has repeatedly held that motions in the trial court and rulings thereon are not properly a part of the record, and can be presented for review only by incorporation into a bill of exceptions or case-made.
In Whitaker v. Chestnutt, 65 Okla. 122, 165 P. 160, it was held:
"Order of the court on a motion to vacate a judgment is not a part of the record proper and cannot be reviewed by this court on petition in error and transcript."
In Lamb v. Young, 24 Okla. 614, 104 P. 335, it was said:
"A motion to discharge property from an attachment is not a part of the record, unless made so by bill of exceptions or case-made."
Upon these authorities the appeal is dismissed.