Ford v. McIntosh

98 P. 341 | Okla. | 1908

The record in this case contains no copy of the judgment rendered in the trial court, and fails to disclose that any judgment was entered. That the record must show the rendition and entry in the lower court of the judgment, decree, or order appealed from is jurisdictional, and, where the record fails to contain a copy of the final judgment or order of the lower court from which appeal is taken, the appeal should be dismissed. Gardenhire v. Burdick, 7 Okla. 212, 54 P. 483;Sproat v. Durland, 7 Okla. 230, 54 P. 458; 2 Cyc. 1029, and authorities there cited. The certificate of the judge to the bill of exceptions recites that the motion of defendant to set aside the report of the probate commissioner was sustained, and that an order continuing the defendant as guardian of said minors, so far as the property was concerned, was made by the court on or about the 1st day of August, 1906. The certificate to the bill of exceptions, containing this statement was signed on September 30, 1906. This statement in the certificate to the bill of exceptions, however, is insufficient to supply the defect of the record resulting from the failure to set out in the record proper the judgment or order appealed from. In re DeLeon's Estate (Cal.) 35 P. 309; In re C. E. Spencer, 61 Mo. 375; Gray v. Singer, 137 Ind. 257, 36 N.E. 209, 1109; Clarke v. McDade, 165 U.S. 168, 17 Sup. Ct. 284, 41 L.Ed. 673.

Since the record in this case presents no order or judgment of the trial court for review, we decline to consider and pass upon the questions argued in plaintiff in error's brief and it is ordered that the appeal be dismissed at the cost of plaintiff in error.

All the Justices concur.