KERSHAW v. BOARD OF COM'RS

KERSHAW v. BOARD OF COM'RS
1929 OK 112
275 P. 621
135 Okla. 302
Case Number: 18781
Decided: 03/12/1929
Supreme Court of Oklahoma

KERSHAW, Rec.,
v.
BOARD OF COM'RS OF MUSKOGEE COUNTY et al.

SyllabusC

¶0 1. Appeal and Error--Exceptions, Bill Of--Necessity for Filing in Trial Court.
A bill of exceptions never becomes a part of the record until it is filed in the trial court, and, unless filed in that court, it cannot be incorporated in a transcript in support of a petition in error in this court.
2. Appeal and Error--Appeal by Transcript of Record--Office of Bill of Exceptions.
A party desiring to appeal may attach to his petition in error a transcript of the record, and if he desires to bring to this court any part of the proceedings other than the record as provided in section 688, C. O. S. 1921, he must incorporate the same into the record by bill of exceptions.
3. Same--Motion for New Trial and Order Overruling Motion not Part of Record Brought up by Transcript.
A motion for new trial and an order overruling the same are no part of the record of the trial court which can be brought to this court by transcript.
4. Appeal and Error--Notice of Appeal--Summons in Error Abolished by Statute.
By the act of the Legislature, chapter 219, Session Laws 1917, approved March 23, 1917, section 5238 of the Revised Laws 1910, was repealed and summons in error abolished thereby.
5. Same -- Notice of Intention to Appeal Jurisdictional--Requisites of Waiver.
The notice of intention to appeal takes the place of summons in error, and is jurisdictional, and cannot be waived except by waiver in writing signed by defendant or his attorney of record and filed in this court within the six months allowed for taking the appeal.
6. Same--Dismissal of Appeal Where Statutory Notice of Appeal not Given.
Where a party desiring to appeal fails to give notice in open court, either at the time the judgment appealed from is rendered or within 10 days thereafter of intention to appeal to the Supreme Court, this court is without jurisdiction to review such judgment, and an appeal therefrom will be dismissed.

Error from District Court, Muskogee County; Enloe V. Vernor, Judge.

Action by E. R. Kershaw, receiver of the Muskogee-Security National Bank of Muskogee, against the Board of Commissioners of Muskogee County et al. From an order sustaining a demurrer to plaintiff's petition and dismissing plaintiff's cause of action, plaintiff appeals. Dismissed.

Ferd. P. Snider, for plaintiff in error.
S. H. Lattimore, Co. Atty., for Board of County Commissioners.

PER CURIAM.

¶1 This is an appeal from the judgment of the district court of Muskogee county rendered on the 29th day of June, 1927, in an action wherein the plaintiff in error was plaintiff and the defendants in error were defendants.

¶2 The petition in error, with what purports to be a transcript attached thereto, was filed in this court September 27, 1927. No attempt is made in this cause to preserve the record of the trial court by case-made, nor can the purported record be considered as such; although it was duly served upon the attorney for the board of county commissioners of Muskogee county and upon the attorney for the remaining defendants, yet it was never settled, certified to, and signed by the trial judge as a case-made. The purported record presented is certified to by the court clerk as a full, true, and complete transcript of the record in said cause, and incorporated therein is a recital of the proceedings of the trial court setting forth therein the petition filed by the plaintiff in said cause, to which the board of county commissioners of Muskogee county filed a demurrer, which demurrer was on the 30th day of March, 1927, sustained by the court, and to which action of the court the plaintiff excepted. The cause then was tried to the court as to the remaining defendants, and taken under advisement, and judgment rendered on the 29th day of June, 1927, in favor of the plaintiff as against the remaining defendants. The purported record further shows on June 30, 1927, the plaintiff filed a motion for new trial in which is incorporated his complaint of the action of the trial court in sustaining the demurrer of the board of county commissioners to the plaintiff's petition, which motion was by the court overruled on the 22nd day of September, 1927. The plaintiff then gave notice of appeal in open court. The recital of the proceedings of the court as above set forth is signed by the trial judge, and might be considered as a bill of exceptions, and had the plaintiff in error caused the same to be filed by the clerk, could properly be incorporated in the transcript. It was not so filed.

¶3 A bill of exceptions never becomes a part of the record until it is filed in the trial court, and unless filed in that court, it cannot be incorporated in the transcript in support of a petition in error in this court. Vann v. Union Central Life Ins. Co, 79 Okla. 17, 191 P. 175. A party desiring to appeal may attach to his petition in error a transcript of the record, and if he desires to bring to this court any part of the record other than the pleadings, process, the return, report, verdict, orders, and judgments, as provided in section 688, C. O. S. 1921, he must incorporate the same into the record by a bill of exceptions. Vann v. Union Central Life Ins. Co., supra. A motion for new trial and an order overruling the same are no part of the record of the trial court which can be brought to this court by transcript. Folsom v. Billy, 78 Okla. 146, 189 P. 188; Davis v. De Geer, 91 Okla. 111, 216 P. 156; Brigham v. Davis et al., 126 Okla. 90, 258 P. 740.