Belcher v. Wasson and Reed

Opinion of the court by HaiNER, J.: This case comes here on a transcript of the record of the district court, duly certified by the clerk of the court. The errors assigned in the petition in error relate solely to matters which occurred upon the trial of the case. It appears that after the jury was empaneled and sworn to try the cause, the defendants moved to dismiss the case *649 for the reason that there had never been a proper and sufficient affidavit in replevin filed in said cause. The court sustained the motion, to which ruling of the court the plaintiff excepted, and asked leave to file an amended replevin affidavit, which leave was granted • upon the terms that the plaintiff pay all costs that had accrued up to that time. To which order requiring the plaintiff to pay the costs, the plaintiff excepted, and refused to comply therewith. Thereupon the court, upon motion of the defendants, discharged the jury and dismissed the case. , This question cannot be reviewed upon the record before us, for the reason that such a motion, and the rulings of the court thereon, without a bill of exceptions or case-made do not constitute a part of the record proper which can be brought to this court by a transcript. (McMechan v. Chris ty, 3 Okla. 301; Black v. Kuhn, 6 Okla. 87.) The judgment of the court below is therefore affirmed. Pancoast, J., who presided in the court below, not sitting; all the other Justices concurring.