Smith v. Fash

PER CURIAM. Plaintiffs in error were plaintiffs in the trial court, and the defendant in error was defendant below. Parties will be referred to as they appeared below. This cause was submitted to the trial court without intervention of the jury, and at the conclusion of the testimony and upon motion .of plaintiff for judgment, the court made the following pronouncement: “Now the court finds * * * judgment will be for the defendant. Motion for new trial is overruled by the court. To which action of the court plaintiff excepts and moves for time in which to make and serve case-made for the Supreme Court from the judgment herein and moves the court for a fixing of a supersedeas bond in appeal. Thirty, ten and five days are given in which to make, serve, settle and sign the case. Supersedeas bond is fixed at $500, to he made and filed with the court clerk within 20 days. In the meantime execution for judgment is superseded.” The clerk’s minutes of the record of this case in the trial court recite: *105 “Judgment rendered in favor of defendant and against plaintiff refusing permanent injunction herein. “Motion for new trial filed tliis date. Motion for new trial argued and overruled and exception saved by plaintiff. “Application for plaintiff for extension of time to make, serve, settle case-made for Supreme Court. Notice given in open court by plaintiff of his intention to appeal from decision herein to Supreme Court.” There is no further order or journal entry disclosed by the record. The pronouncement of the court and the minutes of the court clerk, as above set forth, are all that is contained in the record concerning the judgment, the order overruling motion for a new trial, and notice of ax>peal. The minutes of the court clerk are no part of the record, and the recital therein of notice to appeal, in the absence of any other record, is insufficient to show a compliance with section 7S2. Comp. St. 1921, in respect to notice of intention to appeal. In Lillard v. Meisberger, 113 Okla. 228, 240 Pac. 1067, the rule is laid down by this court as follows: “Where the record does not contain an order of the court overruling a motion for new :rial, a mere recital (in the case-made) that he motion for new trial was in fact over-■uled and exceptions allowed, is insufficient n the absence of such order, and there is íothing properly before this court for re-de w.” Under this rule the court clerk’s minutes ire eliminated from consideration, and in the case of Singer v. Ooley et al., 112 Okla. 28, 139 Pac. 594, this court laid down the rule: “Where the record shows that a motion ior a new trial was necessary, that same ,vas filed and overruled and exception saved, ind no notice of intention to appeal was jiven as provided by section 782, O. S. 1921, ro jurisdiction to hear the appea.1 on the nerits is conferred on this court.” The plaintiffs insist in their response that ;hey can be heard in this court on trans-:ript. An examination of the petition in amor discloses that no error is assigned that nay be examined by transcript. We there-’ore conclude that this court is without juris-iiction to hear this appeal, and the same is íereby dismissed.