MODERN BOOK & NEWS CO. v. STERNMAN

MODERN BOOK & NEWS CO. v. STERNMAN
1922 OK 218
207 P. 961
86 Okla. 257
Case Number: 13235
Decided: 06/20/1922
Supreme Court of Oklahoma

MODERN BOOK AND NEWS CO. et al.
v.
STERNMAN.

Syllabus

¶0 1.Appeal and Error--Record--"Record Proper."
The record proper in a civil action, under the procedure in this state, consists of the petition, answer, reply, demurrers process, rulings, orders, and judgment.
2.Same--Action on Motion for New Trial--Review.
A motion for new trial and the action of the court in overruling the same, being no part of the record proper, the assignment that the court erred in overruling the motion cannot be presented to this court by transcript of the record.
3. Same--Rulings on Motions--Presentation for Review.
Motions presented to the trial court, the rulings thereon, and exceptions thereto, are not properly part of the record, and can only be preserved and presented for review on appeal by incorporating the same in a bill of exceptions or case-made.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action between the Modern Book & News Company and Louis Harvey and Benj. Sternman, a sole trader, doing business as Benj. Sternman & Company. From the judgment the two parties first named bring error. Dismissed.

Lewis & Lewis and Hayson & Lukenbill, for plaintiffs in error.
S. K. Bernstein, for defendant in error.

JOHNSON, J.

¶1 This is an appeal by transcript. The petition in error contains but one assignment, which is:

"Said court erred in overruling the motion of plaintiffs in error for new trial."

¶2 The motion to dismiss this appeal was filed, with proof of service thereon, on May 2, 1922. To which no response has been made.

¶3 A motion for new trial, and the action of the court in overruling the same, being no part of the record, without case-made or bill of exception, cannot be presented to the court by transcript. Collins v. Garvey, 67 Okla. 36, 171 P. 330; Wyant v. Beavers, 63 Okla. 68, 162 P. 732; Miller v. Markley, 49 Okla. 177, 152 P. 345; Vannier v. Frat. Aid Ass'n, 40 Okla. 732, 140 P. 1021; Williams v. Kelly, 71 Okla. 166, 176 P. 204.

¶4 In the absence of a case-made or bill of exceptions, the errors complained of cannot be considered. The motion to dismiss must be sustained, and it is so ordered.