BANTA v. BANTA

BANTA v. BANTA
1950 OK 286
224 P.2d 592
203 Okla. 580
Case Number: 34734
Decided: 11/21/1950
Supreme Court of Oklahoma

Syllabus

¶0 APPEAL AND ERROR - Case dismissed where petition in error filed without case-made or transcript of record.
The filing of a petition in error in this court, without a case- made or transcript of the record attached thereto, is not sufficient to authorize the Supreme Court to review any of the errors alleged, and the proceedings will be dismissed.

Appeal from District Court, Oklahoma County; Baker H. Melone, Judge.

Action by Carl H. Banta against Winnie A. Banta to obtain a divorce. Judgment for plaintiff, and defendant appeals. Dismissed.

Fletcher Riley, Oklahoma City, for plaintiff in error.

Carmon C. Harris, Oklahoma City, for defendant in error.

HALLEY, J.

¶1 This action was commenced to obtain a divorce. The first appeal in this case is found in Banta v. Banta, Okl.Sup., 210 P.2d 346. Therein the court denied a divorce and adjusted certain property rights. The plaintiff, Carl Banta, brought this action and on March 28, 1950, the trial court granted plaintiff a divorce and refused to grant the defendant any alimony or attorney fee other than had already been allowed therein.

¶2 Defendant has appealed. Plaintiff has filed a motion to dismiss for the reason the appeal is not perfected in accordance with law in that no case-made has been served and filed.

¶3 The motion to dismiss must be sustained. It is admitted that no case- made has been served and filed. The papers offered with the petition are not certified as a transcript. Defendant states that she has prepared and filed a bill of exceptions. The proposed bill of exceptions was not allowed by an order of the court as required by 12 O.S. 1941 § 635, and for this reason is not a part of the record. Adams Royalty Co. v. Faulkner, 176 Okl. 423, 55 P.2d 1033. In addition, when a bill of exceptions is allowed and filed it can be reviewed only on a duly-certified transcript. Adams Royalty Co. v. Faulkner, supra, and cases cited therein.

¶4 This court has held many times that where the petition in error is not accompanied by a case-made duly served and filed or by a transcript of the record duly certified, there is nothing for this court to review, and the purported appeal will be dismissed. Merry v. Industrial Building & Loan Ass'n et al., 138 Okl. 240, 280 P. 822; Keel v. Keel, 138 Okl. 243, 280 P. 814.

¶5 Appeal dismissed.