Lillard v. Meisberger

53 Citing cases

  1. Bouse v. Whitney

    265 P. 1048 (Okla. 1928)   Cited 1 times

    1. Appeal and Error โ€” Necessity for Record of Judgment โ€” Dismissal of Appeal. A record which falls to contain a copy of the final order or judgment sought to be reviewed, and in which it is not made to appear that the same is of record in the trial court, presents no question to this court for its determination, and the appeal will be dismissed. Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067. 2.

  2. Argentoes v. Fidelity Bldg. Loan Ass'n

    260 P. 55 (Okla. 1927)   Cited 6 times

    is without jurisdiction to hear and determine said appeal on the ground that the original case-made as filed in this court and before the same was amended by the trial court contained no order of the trial court overruling the motion for new trial, and that the order overruling motion for new trial which was added to the case-made by amendment was filed and recorded in the trial court more than six months after the date of said order and constitutes no part of the record, and, further, that the amendment made to the case-made was signed and settled without proper notice to the defendant in error. In support of the proposition that no copy of the order overruling the motion for new trial was contained in case-made and that the only showing that the same had been overruled was the recital of the minutes of the court clerk as contained in case-made, and that by reason thereof same is insufficient to bring the matter before this court for review, the defendant in error cites the case of Lillard v. Meisberger, 113 Okla. 228. 240 P. 1067, and also the more recent case of City of Tulsa v. Kay et al., 124 Okla. 243, 255 P. 684, decided April 19, 1927, in which it is held that where the case-made contains only the recital of clerk's minutes showing the overruling of motion for new trial, it is insufficient to present the error assigned to this court for review. The rule announced in the cases above cited is well laid and well founded and is supported by the showing made in the case of Showalter v. Hampton, 122 Okla. 192, 253 P. 105, wherein the record disclosed that the minutes of the court clerk showed one state of facts and the judgments and orders signed by the trial judge and recorded in the journal of the court showed another, and were it not for the subsequent acts of the plaintiff in error in causing the case-made to be amended, the rule announced in those cases would obtain without further analysis of the condition of this record.

  3. City of Sapulpa v. Young

    147 Okla. 179 (Okla. 1931)   Cited 36 times

    This court will determine for itself whether the record is such as it has jurisdiction to review, and if not, whether the case-made may be corrected as provided in section 786, C. O. S. 1921, so as to present the errors complained of in the petition in error or a cross-petition in error, or either or both. Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067. 16.

  4. In re Magnolia Petroleum Co.

    280 P. 574 (Okla. 1929)   Cited 12 times

    This court will determine for itself whether its jurisdiction to review the cause appealed to this court has been invoked. Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067. 2.

  5. Dusbabek v. Bowers

    270 P. 3 (Okla. 1928)   Cited 4 times

    Appeal and Error โ€” Dismissal of Appeal for Lack of Record of Judgment or Final Order. A record which fails to contain a copy of the final order or judgment sought to be reviewed, and in which it is not made to appear that the same is of record in the trial court, presents no question to this court for its determination, and the appeal will be dismissed. Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067. Commissioners' Opinion, Division No. 2.

  6. Aven v. Reeh

    1994 OK 67 (Okla. 1994)   Cited 11 times

    We additionally note that pursuant to ยง 696.2(C), effective October 1, 1993, a minute entry is listed among those things not constituting a judgment, decree or appealable order. Elliott v. City of Guthrie, 725 P.2d 861, 863 (Okla. 1986), Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067, 1069 (1925), (a clerk's minute noting that the court has overruled a motion for new trial is not an order appearing of record); Render v. Henry Schafer, Inc., 198 Okla. 95, 175 P.2d 330 (1946), (no appeal could be prosecuted from a minute entry reflecting a motion for new trial was overruled when no journal was made of this entry, and court relied upon Lillard, supra,); McCullough v. Safeway Stores, Inc., 626 P.2d 1332, 1335 n. 8 (Okla. 1981), (record entry of judgment is not based upon a clerk's minute). Cf. State v. Ford, 573 P.2d 257, 258 (Okla. 1977), (journal entry of judgment controls inconsistent minute).

  7. Marshall v. OK Rental & Leasing, Inc.

    1994 OK 87 (Okla. 1994)   Cited 5 times
    In Marshall v. OK Rental Leasing, Inc., 879 P.2d 132, 134 (Okla. 1994), we held that ยง 990A.B applied to appellant's petition in error because "the petition was mailed to us on September 2, 1993 by U.S. certified mail, return receipt requested.

    Patmon v. Block, supra.Elliott v. City of Guthrie, 725 P.2d 861, 863 (Okla. 1986); Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067, 1069 (1925), (a clerk's minute noting that the court has overruled a motion for new trial is not an order appearing of record); Render v. Henry Schafer, Inc., 198 Okla. 95, 175 P.2d 330 (1946), (no appeal could be prosecuted from a minute entry reflecting a motion for new trial was overruled when no journal was made of this entry, and court relied upon Lillard, supra,); McCullough v. Safeway Stores, Inc., 626 P.2d 1332, 1335 n. 8 (Okla. 1981), (record entry of judgment is not based upon a clerk's minute). Cf. State v. Ford, 573 P.2d 257, 258 (Okla. 1977), (journal entry of judgment controls inconsistent minute).

  8. Oklahoma Turnpike Authority v. Kitchen

    1959 OK 33 (Okla. 1959)   Cited 13 times

    Subsequent to the expiration of the time in which an appeal could be perfected the defendant, with leave of this court, withdrew the case-made for correction, and after a hearing the trial court signed a Nunc Pro Tunc order wherein it is recited that such an order was made on the date indicated in the reporter's transcript and then signed a journal entry overruling the motion for new trial as of said date. In Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067, 1069, we said: "An order of the trial court overruling a motion for a new trial must be made with the same solemnity as a judgment on the merits, and a mere recital in the clerk's minutes as in the case at bar, which finds its way into the case-made, cannot be substituted for such an order, or supply the defect for failure to make it."

  9. Hays Trucking Co. v. Maxwell

    1953 OK 245 (Okla. 1953)   Cited 7 times

    This writing's recital that "the motion for new trial is overruled" did not make it an order. City of Tulsa v. Kay, 124 Okla. 243, 255 P. 684; Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067. It would not even appear in the case-made had it not been introduced by defendant as an exhibit at the second and last hearing on plaintiff's motion for a new trial. It is of some significance that the trial court nowhere in the record referred to this so-called "Opinion" as an order. We think it can be inferred from his remarks that he did not intend it or consider it as such.

  10. Trosper v. Bray

    259 P.2d 320 (Okla. 1953)

    We have held that in order to review the appeal from an order overruling the motion for new trial the order must be in the record. Bigpond v. Davis, 121 Okla. 44, 247 P. 676; Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067; Morris v. Caulk, 44 Okla. 342, 144 P. 623; Bell v. Board of Com'rs of Craig County, 182 Okla. 390, 77 P.2d 1120; Russell v. Motor Mortgage Co., 154 Okla. 49, 66 P.2d 820. In Bigpond v. Davis, supra, it is stated: