KERFOOT v. JONES

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KERFOOT v. JONES
1907 OK 120
92 P. 141
19 Okla. 186
Decided: 09/05/1907
Supreme Court of Oklahoma

KERFOOT, MILLER, ARNOLD & CO. a Corporation,
v.
J. B. JONES, Receiver of Stock Exchange Bank of Hollis, Oklahoma Territory.

Syllabus

¶0 WRIT OF ERROR--Record--Necessary Averments--Review. This court will not review any question dependent upon an examination of the evidence for its determination, where the record fails to disclose, by averment or its equivalent, that it contains all the evidence introduced on the trial.

Error from the District Court of Greer County; before Clinton F. Irwin, Trial Judge.

Affirmed.

H. A. Smith, W. F. Wilson and H. E. Elder, for plaintiff in error.
B. F. Van Dyke, for defendant in error.

BURFORD, C. J.:

¶1 This cause was tried to the court upon an issue of fraud alleged by the plaintiff in error. Depositions were read, witnesses examined, and certain books, cheeks, and accounts introduced in evidence. The court decided against the plaintiff in error, and rendered judgment against it for costs. The company appealed, and the only questions submitted for our review depend upon an examination of the evidence for their determination.

¶2 It is apparent that the evidence is not all in the record. This court has repeatedly held, and must adhere to the rule, that where the case-made does not contain an averment by way of recital, or its equivalent, that it contains all the evidence introduced on the trial of the cause, this court will not review any question which requires an examination of the evidence in order to determine it. And this rule must be applied here. Frame v. Ryel, 14 Okla. 536 79 P. 97; Board of Washita Co. v. Hubble, 8 Okla. 169, 56 P. 1058; Sawyer Lumber Co. v. Champlin Lumber Co., 16 Okla. 90, 84 P. 1093; Kiowa Co. Bank v. Hobart Ice Co. (Okla.) 89 P. 1118.

¶3 The judgment of the district court of Greet county is affirmed, at the costs of the plaintiff in error.

¶4 Irwin, J., who presided in the court below, not sitting; all the other Justices concurring.