STATE ex rel. PITMAN Co. Atty. v. FIDELITY BLDG. & LOAN ASS'N.

STATE ex rel. PITMAN Co. Atty. v. FIDELITY BLDG. & LOAN ASS'N.
1928 OK 591
270 P. 842
133 Okla. 6
Case Number: 19615
Decided: 10/02/1928
Supreme Court of Oklahoma

STATE ex rel. PITMAN, Co. Atty.,
v.
FIDELITY BLDG. & LOAN ASS'N.

Syllabus

¶0 Appeal and Error--Motions and Rulings Thereon and Exceptions not Part of Record Proper. Motions presented in the trial court, the rulings thereon, and exceptions thereto are not properly a part of the record, and can only be preserved and presented for review on appeal to the Supreme Court by incorporating the same in the bill of exceptions or case-made.

Randall Pitman, Co. Atty., and T. G. Cutlip, for plaintiff in error.
Park Wyatt, for defendant in error.

PER CURIAM.

¶1 This is an appeal from an order of the district court of Pottawatomie county denying plaintiff in error's motion to vacate the judgment rendered in the trial court on the 23rd day of February, 1926. On the 13th day of July, 1928, plaintiff in error, who was defendant below, fired a motion to vacate the judgment so rendered on the 23rd day of February, 1926; a hearing was had on said motion, and on the 14th day of July, 1928, motion was overruled and denied, and it is from this order the plaintiff in error appeals. The record is brought to this court by transcript attached to the petition in error.

¶2 The defendant in error has filed in this court motion to dismiss the appeal for the reason that the errors assigned cannot be reviewed upon transcript, and that in order to have the same reviewed the record must be presented to this court by case-made or bill of exceptions. The only question attempted to be presented to this court by the record filed in this cause is the action of the trial court in denying the motion to vacate the judgment, which became final long before the filing of the motion to vacate the same. In the case of Holloway v. O'Dell, 131 Okla. 38, 267 P. 620, this court, following the rule laid down in the cases of Stonebraker-Zea Cattle Co. v. Hilton, 34 Okla. 225, 124 P. 1062, and Richardson v. Beidleman, 33 Okla. 463, 126 P. 818, said:

"Motions presented in the trial court, the rulings thereon, and exceptions thereto are not properly a part of the record, and can only be preserved and presented for review on appeal" to the Supreme Court "by incorporating the same into a bill of exceptions or case-made."

¶3 This rule has been consistently followed in a long line of decisions of this court. See Craig v. Greer, Sheriff, 33 Okla. 302, 124 P. 1096; Billington v. Grayson, 59 Okla. 182, 158 P. 433; Scott v. Woods Lumber Co., 86 Okla. 185, 207 P. 449; Davis v. DeGeer, 91 Okla. 111, 216 P. 156; United Fig & Date Co. v. Carroll, Brough, Robinson, & Humphrey, 116 Okla. 82, 243 P. 211; Brigham v. Davis, 126 Okla. 90, 258 P. 740.

¶4 That this court may review alleged errors of the trial court in an order denying a motion to vacate judgment, the record must be presented by case-made or bill of exceptions, and unless so presented, this court will not review the same.