Ward v. Weathers

*26 PER CURIAM. TMs is an attempt to appeal from an order of tlie district court of McCurtain county dismissing plaintiffs’ first amended petition. Tlie order appealed from was made on motion of tlie defendants based upon the ground that the demurrer had been sustained to plaintiffs’ petition, and the plaintiffs having elected to plead further, the amended petition failed to set out any new grounds for relief. The appeal is by transcript, and the certificate thereto fails to show afiirmatively that it is a full, true, and correct transcript of the whole record. It certifies that, “The foregoing is a full, true, and correct transcript of all the record and proceedings in the above-entitled cause, on the hearing of the motion of the defendants herein to dismiss plaintiffs’ first amended petition filed in said cause.” The record as presented does not contain the original petition or the order sustaining the demurrer thereto, and the only assignment of error presented in the petition in error is to the effect that the court erred in sustaining the motion to dismiss the amended petition and in dismissing the same. Under this condition of the record, this court cannot determine the question raised by this appeal, though the record was properly certified. The record presented does not show that the whole record is not presented, but, on the contrary shows affirmatively that the whole record is not presented, and the certificate of the clerk shows affirmatively that the whole record is not presented, and in case of appeal by transcript the whole record must be presented and the certificate of the clerk must affirmatively so show. McGuire v. Rash, 89 Okla. 132, 241 Pac. 698, and eases therein cited. No attempt is made to incorporate in the transcript a bill, of exceptions or to bring the record here by case-made, and it is well settled that motions and orders thereon are no part of the judgment roll and cannot be brought into this court for review except by bill of exceptions or case-made. McGuire v. Rash, supra; Harris v. Tupeker, Adm’r, et al., 96 Okla. 117, 220 Pac. 634, and cases therein cited. The purported transcript attached to the petition in error presents nothing to this court for review, and the appeal is dismissed.