BIGPOND v. DAVIS

BIGPOND v. DAVIS
1926 OK 553
247 P. 676
121 Okla. 44
Case Number: 16015
Decided: 06/15/1926
Supreme Court of Oklahoma

BIGPOND
v.
DAVIS et al.

Syllabus

¶0 1. Appeal and Error--Record--Minutes of Trial Clerk. The minutes of the clerk constitute on part of the record lodged in this court on appeal.
2. Same--Defective Record of Order Denying New Trial. Where the record does not contain an order of the court overruling a motion for a new trial, a mere recital therein transcribed from the clerk''s minutes is not sufficient to bring the appeal before this court for review.

Leroy J. Burt, for plaintiff in error.
Streeter Speakman, for defendants in error.

PER CURIAM.

¶1 This case is appealed from the district court of Creek county, and defendants in error move the dismissal of the appeal upon the ground that there is no order of the court in the record overruling the motion for new trial. There appears in the record the following recital:

"And now this cause came on for further hearing before the court, and judgment rendered as per journal entry; and the plaintiff files his motion for a new trial, and said motion is overruled, and exceptions allowed. And now upon notice in open court of the plaintiff''s intention to appeal to the Supreme Court of Oklahoma, the court granted 60 days to make case-made, 10 days to suggest amendments, and 5 days'' notice to settle and sign said case-made."

¶2 This recital was copied into the record from the clerk''s minutes, as the record itself shows, and not from the journal of the court, and the clerk''s minutes constitute no part of the record. Section 685, C. O. S. 1921, provides that "all judgment and orders must be entered on the journal of the court and specify clearly the relief granted or order made in the action." An analogous question was before the court in the case of DeWatteville v. Sims,

"This memorandum made by the court constitutes no part of the record in the case. It is customary for the trial court to keep such a record, but there is no statutory provision for the same, and it is not part of the record proper."

¶3 In Pennock et al. v. Monroe, 5 Kan. 578, we find the following:

"It is true that the record contains a copy of the minutes made by the judge, before whom the case was tried, upon his trial docket and under the title thereof. But this is all that appears. Such minutes are no part of the record in any case, and might be omitted entirely without affecting in any manner the validity of any proceedings had or determined therein by the court."

¶4 The minutes of the court as disclosed by its trial docket not being a part of the record, it necessarily follows that the minutes of the clerk are not and cannot be made so by simply transcribing them therein. The record contains no order of the court overruling motion for a new trial, and this is fatal to the appeal. The recital in the record heretofore set out is not an order of the court, but a mere transcript of the minutes of the clerk. An order overruling a motion for a new trial should be made and entered in the court''s journal in the same manner as though it were a judgment.

¶5 In Lillard v. Meisberger,