8 P.2d 35 | Okla. | 1932
This is an appeal from a judgment of the district court of Muskogee county in favor of the defendants in error, the defendants in that court, against the plaintiffs in error, the plaintiffs in that court. Hereinafter the parties will be referred to as plaintiffs and defendants.
The defendants have filed in this court a motion to dismiss the appeal. The first reason assigned by them for the dismissal thereof is:
"The case-made in this cause does not contain a positive averment by way of a recital that it contains all of the proceedings and evidence or other matters in the action as may be necessary to present the errors complained of. Lack of such recital is fatal to the appeal."
An examination of the instrument filed herein as a case-made discloses that there is no averment by way of a recital therein in the form usually included in case-mades. For the want of such an averment, many appeals have been dismissed by this court. See Alexander v. First Nat. Bank of Duncan,
"Where a case-made does not contain a positive averment by way of a recital that it contains all of the proceedings and evidence or other matters in the action as may be necessary to present the error complained of to the Supreme Court, the same is insufficient and without force." *83
Section 784, C. O. S. 1921, provides that a party desiring to have a judgment of the district court reversed by the Supreme Court "may make a case, containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the Supreme Court."
There is no requirement therein that all of the proceedings or all of the evidence or all of the other matters in the action be included. In Pahlka v. Chicago, R.I. P. Ry. Co.,
"The fact that a case-made does not show that it contains all of the evidence is not necessarily ground for the dismissal of an appeal, where a consideration of all of the evidence is not necessary to a determination of the questions raised upon the appeal."
In St. Louis S. F. R. Co. v. Taliaferro,
"Only those matters essential to present the errors complained of need be brought up. The party under this procedure may make a case containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to clearly present the points involved, eliminating all unnecessary or irrelevant matter; and, when served and settled as therein authorized, it will be sufficient."
There is useless waste when there is included in a case-made anything not necessary to present to this court the errors complained of, — waste of money of litigants in paying therefor and waste of the time of this court in considering the same. Notwithstanding the language of the statute and the decisions of this court, there is a custom among the lawyers of this state to include in the case-made all of the pleadings, proceedings, evidence, and other matters in the action without regard to whether or not they are necessary to present the errors complained of to this court. We know of no reason why a summons should be shown in a case-made where an appearance has been made and no question of the jurisdiction of the court over the person of the defendant is presented. Possibly the custom has arisen from a misapprehension of the meaning of the decisions of this court with reference to the requirements of section 784, supra.
In Board of Commissioners v. Wright,
"Usually, when a party making a case for the Supreme Court desires that it shall be shown that the case contains all the evidence, the case itself, as served upon the adverse party, should contain a statement to that effect, so as to give the adverse party an opportunity to suggest amendments if he think the statement untrue, either by striking out the statement, or by inserting such other evidence as he may believe has been omitted, and thereby make the case speak the truth."
In Sawyer Austin Lbr. Co. v. Champlain Lbr. Co.,
"The case itself must contain the positive averment by way of recital that it does contain all the evidence submitted or introduced on the trial of the cause, and in the absence of such recital, this court will not review any question depending upon the facts for its determination."
A number of cases were cited in support of the rule stated.
The rule stated by the territorial Supreme Court was stated by this court in Tootle, Wheeler Motter Merc. Co. v. Floyd,
"This contention cannot be considered. The case-made does not contain a positive averment by way of recital that it contains all the evidence submitted or introduced on the trial of the cause. In the absence of such recital, in the case-made, this court will not review any question depending upon the facts for its determination." *84
In support thereof the decisions in Martin v. Gassert,
"This defect in the case-made is called to the attention of the court by the brief of defendants in error. Counsel for plaintiff in error have replied to this brief, insisting that the certificate of counsel is sufficient, but making no request for permission to correct the case-made."
In Briggs v. Kinzer,
It appears from the cases cited and subsequent decisions of this court that the provision of section 784, supra, with reference to the inclusion in a case-made of so much of the evidence as is necessary to present the errors complained of, has been said to require the inclusion in the case-made of all of the evidence where the question presented for review involved a question of fact requiring a review of the evidence. An analysis of the decisions discloses that there was no reason for the use of the broad language used and no intention to vary the terms of the statute adopted by the Legislature which requires the inclusion in the case-made of only such matters as are necessary to present the errors complained of to the Supreme Court. In many cases it is necessary that all of the evidence be included in the case-made, but there are many cases in which it is not necessary that all of the evidence be included in the case-made. As was held in State ex rel. Collins v. Parks,
"A party appealing has the right to make a case which contains only such part of the proceedings as he considers necessary to present the errors complained of. The opposite party may then, in writing, suggest such amendments as he thinks necessary."
See, also, City of Sapulpa v. Young,
"It is not necessary that the entire record be included in the case-made, but so much thereof as is required by section 784, C. O. S. 1921, must be included therein, and there must be an averment therein of the inclusion thereof."
We, therefore, hold that where a case-made does not contain a positive averment by way of a recital that it contains all of the proceedings and evidence or other matters in the action as may be necessary to present the error complained of to the Supreme Court, the same is insufficient and without force, but that it is not necessary that the entire record be included in the case-made, and only so much thereof as is required by section 784, supra, must be included therein.
The case-made does not include the averment required by that rule and, under the decisions of this court, the appeal would be dismissed had not the plaintiffs filed herein a motion for permission to withdraw and correct the case-made by inserting therein an averment by way of a recital. In Alexander v. First Nat. Bank, supra, this court had under consideration a motion to withdraw a case-made for correction. We therein said:
"Under section 786, C. O. S. 1921, the authority is granted to withdraw a case-made for the purpose of including therein matters omitted therefrom and which are of record in the court from which the appeal was taken, and under the doctrine announced in Argentoes v. Fidelity Building Loan Association,
The things therein sought to be included in the case-made were an order overruling the motion for new trial and an order to extend the time to make and serve case-made. It did not appear therein that those orders had been entered on the journal of the court. With reference thereto we said: *85
"If the order was made and is of record, there should be a showing thereof accompanying the application to withdraw the case-made, and in the absence of such a showing this court will not permit the case-made to be withdrawn."
Since the order overruling the motion for new trial was ineffective if not entered on the journal of the court (Carson v. State ex rel. Dudley,
The rule announced by the territorial Supreme Court in Walcher v. Stone,
"A certificate of the clerk of the district court to a transcript, which is attached to a petition in error and filed in this court, within the time limited for appeal, may be amended upon order of this court made prior to final decision, but after the time for filing such appeal has expired."
As punctuated, the text is susceptible of that construction, but it is apparent that a comma was inadvertently used therein. We must hold that it was not the intention of this court to limit the time for correction of a case-made to the time limited for appeal, for that construction of the punctuation used is in conflict with the decision of this court in England. Bros. v. Young,
The defendants "insist that the application for amendment is not in fact and in law an application for amendment, but for an insertion of new matter, and not the amendment of any matter already in the record." This court has spoken concerning the sufficiency of the required averment in New v. Collins,
Timely application for correction has been made under the provisions of section 786, supra, which provides that the same may be done "at any time before the cause is finally decided." The intent of section 786, supra, is to permit amendments to case-mades, and it is therein provided that "no appeal shall be dismissed by reason of such errors or omissions, until an opportunity be given to supply such corrections." The legislative authority thus granted will be recognized by this court.
We, therefore, hold that the application of the plaintiffs to withdraw the case-made for correction by inserting therein a positive averment by way of a recital is authorized, timely, and meritorious under the provisions of section 786, supra, and that it should be, and is granted, the correction to be made under the supervision of the trial court and the case-made to be refiled in this court within 30 days from the promulgation of this opinion. The motion to dismiss the appeal on the ground that the case-made does not contain a proper averment by way of a recital is held in abeyance pending the correction of the case-made as hereinbefore authorized.
The second ground of the motion to dismiss is that the defendant in error Robt. P. Chandler was sued as city clerk of the city of Muskogee; that he was removed from office; that his successor in office was appointed more than a year prior to the filing of the motion to dismiss, and that the cause had not been revived in the name of the successor in office. We think that contention is without merit under the provisions of chapter 88, Session Laws 1923. It is not necessary to cite additional authority on that contention. The motion to dismiss the appeal on the ground of failure to revive the action should be, and it is overruled.
LESTER, C. J., CLARK, V. C. J., and RILEY, HEFNER, CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur.