Upperman v. Coon

HARDY, J. Defendant in error filed motion to dismiss this proceeding for the reason that plaintiffs in error have not preserved by bill of exceptions or case-made the rulings of the court complained of and which it is sought to reverse by this appeal. The errors alleged are: That the county court erred in sustaining a motion to dismiss the appeal to that court from a judgment rendered by the justice of the peace; and second, that said court erred in not granting the motion of plaintiffs in error to correct their appeal in said cause. The motion to dismiss must be sustained. It is a well-settled rule that motions presented to the trial court and the rulings thereon and exceptions thereto are not a part of the record proper and can only be preserved and presented for review on appeal 'by incorporating the same by bin of exceptions or case-made. Dickson v. McDuffee et al., 63 Okla. 218, 164 Pac. 476. In Singleton v. Kennamer, 27 Okla. 564, 112 Pac. 1026, the same situation was presented. In that case it was said: “This proceeding in error was commenced for the purpose of reviewing- an order of the district court of Tulsa county dismissing an appeal' from the justice of the peace court of said county. The only error complained of is that the court erred in dismissing the appeal of the plaintiff in error, and remanding said action to the justice of peace by whom, the judgment appealed from was rendered. It is sought to present this alleged error by a transcript of the record. This cannot be done.” Black v. Kuhn, 6 Okla. 87, 50 Pac. 80: McMechan v. Christy, Okla. 301, 41 Pac. 382. The ruling of the court upon the motions not having been brought on the record by a bill of exceptions or case-made, and the two errors set out being the only ones assigned, there is nothing presented which we can consider upon the transcript of the record, and the proceeding is therefore dismissed. All the Justices concur.