128 P. 501 | Okla. | 1912
On February 23, 1907, the plaintiffs in error, as plaintiffs, commenced an action in equity for "declaration of trust, for an accounting, and for cancellation of deeds" against the defendant in error, as defendant. At the erection of the state, by section 3 of the Act of Congress of March 4, 1907 (section 438, Williams' Ann. Const. Okla.; 34 St. at L. 1286), and section 27 of the Schedule to the Constitution (section 291, Williams' Ann. Const. Okla.), said cause was transferred to the district court of Muskogee county. On March 17, 1910, by virtue of section 11 of the Act of March 6, 1909 (Sess. Laws 1909, p. 181; section 1974, Comp. Laws 1909; Oklahoma Fire Ins. Co. v.Phillip,
"Copy of the evidence taken before him (referee) together with his report thereon embodying his findings of fact and conclusions of law therefrom and the exceptions and motion for a new trial filed by the plaintiffs therein, which said report, with the exceptions of the plaintiffs thereto, and a motion for a new trial filed by the said plaintiffs, is in words and figures as follows: * * *"
Counsel for defendant in error move to dismiss this proceeding in error on the ground that a motion for a new trial was not filed with the trial court. First National Bank v.Oklahoma National Bank,
In Gwinnup et al. v. Griffins et al.,
"Under the Indian Territory procedure, there being no such a thing as a case-made, it is insisted that nothing, unless it was a part of the record proper, could be brought into the record of an action at law except by a bill of exceptions. Under the Oklahoma procedure, a case-made does not become a part of the record of the trial court. St. Louis SanFrancisco R. Co. v. Messenger, Clerk of District Court, et al. (No. 1,591) [
As to the record of this case in the lower court, the practice existing at the time of the erection of the state applied. Where the cause of action arose prior to but was commenced subsequent to the erection of the state, the rule is different. Independent Coton Oil Co. v. Beacham,
This being an equity case, it is not essential to determine whether the Arkansas or the federal practice applied, as in either jurisdiction a motion for a new trial was not required to be filed in order to have the judgment reviewed. Le May v.Johnson,
All the witnesses in this case were examined before the referee or master in chancery, and their testimony reduced to writing and reported by him to the court and read at the hearing. *138
Both under the federal and Arkansas rule such evidence became a part of the record. Blackburn v. Morrison et al.,
The motion to dismiss must be overruled.
All the justices concur.