TROSPER v. BRAY

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TROSPER v. BRAY
1953 OK 214
259 P.2d 320
Case Number: 35528
Decided: 07/14/1953
Supreme Court of Oklahoma

Syllabus

¶0 1. Where the record does not contain an order of the court passing upon a motion for new trial, a mere recital therein transcribed from the clerk's minutes is not sufficient to bring the appeal before this court for review.

2. In order to present the errors of law occurring in the entry of an order overruling a motion for new trial the order must be made a part of the record.

Appeal from the District Court of Pittsburg County, W.A. Lackey, J.

B.S. Null, Hartshorne, for plaintiff in error.

Bell & Tucker, McAlester, for defendants in error.

DAVISON, J.

¶1 This is an appeal by I.C. Trosper from an adverse judgment entered in an action to quiet title. The parties will be referred to as they appeared in the trial court. Plaintiff filed a motion for new trial and appeals from the order overruling the same.

¶2 A motion to dismiss the appeal has been filed and must be sustained on jurisdictional grounds.

¶3 As pointed out by the defendants in their brief the order overruling the motion for new trial is not in the record. Only a mere recital of the clerk's minutes to the effect that the motion for new trial was overruled appears of record. This minute is not sufficient to give this court jurisdiction to review the proported appeal. We have held that in order to review the appeal from an order overruling the motion for new trial the order must be in the record. Bigpond v. Davis, 121 Okl. 44, 247 P. 676; Lillard v. Meisberger, 113 Okl. 228, 240 P. 1067; Morris v. Caulk, 44 Okl. 342, 144 P. 623; Bell v. Board of Com'rs of Craig County, 182 Okl. 390, 77 P.2d 1120; Russell v. Motor Mortgage Co., 154 Okl. 49, 6 P.2d 820.

¶4 In Bigpond v. Davis, supra, it is stated:

"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."

Appeal dismissed.