COOPER v. BOYCE

COOPER v. BOYCE
1929 OK 270
279 P. 306
137 Okla. 221
Case Number: 19331
Decided: 07/02/1929
Supreme Court of Oklahoma

COOPER et al.
v.
BOYCE, County Treasurer.

Syllabus

¶0 1. Appeal and Error--Scope of Review Upon Appeal by Transcript.
A transcript brings up for review only the judgment roll; motions, rulings thereon, and exceptions thereto, being no part of the judgment roll, cannot be considered on transcript.
2. Same--Time for Perfecting Appeal to Review Order Overruling Demurrer.
Where an appeal to this court is by transcript, the action of the trial court in overruling a demurrer must be presented to this court for review within six months from the date of the order overruling such demurrer.

Appeal from District Court, Blaine County; E. L. Mitchell, Judge.

Action by Ray P. Boyce, County Treasurer of Blaine County, against Francis M. Cooper and the American Surety Company of New York. Judgment for plaintiff, and defendants appeal. Dismissed.

F. M. Cooper, for plaintiffs in error.
Ben Smith, J. P. Wishard, and Seymour Foose, for defendant in error.

PER CURIAM.

¶1 This is an appeal from a judgment of the district court of Blaine county rendered on the 4th day of November, 1927, in an action wherein the plaintiffs in error were defendants. Parties are referred to as they appeared in the trial court.

¶2 The defendants demurred to plaintiff's petition, which demurrer was by the trial court overruled on the 24th day of January, 1927. Thereafter the defendants filed their answer, the cause was tried to the trial court without the intervention of a jury, and judgment rendered for the plaintiff, from which judgment the defendants appeal. No motion for new trial was filed in the trial court.

¶3 The first and second assignments are based upon the action of the trial court in its ruling upon the motion to make plaintiff's petition more definite and certain and to quash the summons in the action, and the fourth assignment of error in the petition in error is based upon alleged errors occurring at the trial of the cause. The appeal in this cause is by transcript, but no bill of exceptions is incorporated therein. Assignments of error 1, 2, and 4 cannot be reviewed in this court upon transcript of the record, but must be presented by bill of exceptions or case-made. In re Cutchall Estate, 131 Okla. 226, 268 P. 269; Holloway v. O'Dell, 131 Okla. 38, 267 P. 620; Williams v. Kelly, 71 Okla. 166, 176 P. 204.

¶4 The third assignment of error is that the court erred in overruling the demurrer of the defendants to plaintiff's petition. This alleged error may be reviewed upon transcript, but must be appealed to this court within six months from the date of the order overruling the demurrer. The order overruling the demurrer was made on the 24th day of January, 1927, and the appeal lodged in this court on May 3, 1928, which was not within the six months allowed by law in which to appeal. This court is therefore without jurisdiction to review the same. McGrath v. Rorem, 123 Okla. 163, 252 P. 418; Liberty Life Insurance Co. v. Green, 133 Okla. 58, 270 P. 1111; Aultman & Taylor Machinery Co. v. Fuss, 86 Okla. 168, 207 P. 308.