Short v. HaleShort v. Hale
- Reporters:
- , ,
- Before:
- Halley
This cause was instituted here and is sought to be prosecuted as an appeal by certified transcript of the record as that term is employed in
This cause was commenced here October 15, 1964, by a petition in error to which there is attached an exhibit designated as “Transcript on Appeal.” The exhibit is authenticated by a certificate of the court clerk specifying the instruments included therein. The certificate of authentication affirmatively shows on its face that parts of the record proper were omitted from the transcript.
The trial court’s decision from which this appeal was taken struck appellant’s amended petition and dismissed his action. This constituted an appealable order. Wilson v. Walker, 190 Okl. 299, 122 P.2d 160, 161. Pronounced on July 17, 1964, this final order was rendered before the effective date of our opinion in Poafpybitty v. Skelly Oil Co., Okl., 394 P.2d 515. The present appeal is thus unaffected by the rule announced in that case, and a motion for a new trial was hence unnecessary to preserve for review the assigned errors in determining an issue of law. Since this cause was instituted here as an appeal by certified transcript of the record, the maximum time (of three months) prescribed for its commencement by
In their motion to dismiss filed here January 6, 1965, appellees urge, inter alia, that the instrument attached here to the petition in error fatally defective as a certified transcript of the record, as that term is employed in
There exist three methods of bringing a civil case up for review to the Supreme Court: (1) by case made; (2) upon the original record; and (3) by certified transcript of the record. If the appeal is instituted by case made, only such por
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tions of the record and proceedings may be incorporated as are deemed necessary to present the errors assigned. The statute specifically authorizes such abridgment of the record.
In an appeal brought upon the original record the aggrieved party may also present for review only so much of the proceedings as is deemed necessary to a full understanding of the errors assigned.
But in a proceeding in error by certified transcript of the record, as that term is employed in
The rationale of this rule amply justifies its existence. Since there is no procedure for settlement of a transcript or for its amendment at the instance of the successful party, the appellate court is without any assurance that the parts omitted from an incomplete record would not, if included, explain the errors assigned or show them cured or harmless. Burns v. Burgett, 19 Kan. 162, 164.
The term “record” or “record proper,” as used in reference to a transcript of the record, is synonymous with the term “judgment roll” at common law. It comprises all instruments and pleadings which by force of
An appeal by transcript of the record does not stand perfected unless within the maximum time prescribed by
Where an instrument attached to> the petition in error fails to show affirmatively that it contains a true, full and correct copy of all the proceedings which are a part of the record proper, such instrument is ineffective as a certified transcript of the record and presents nothing for review. Schabel v. Wright, 179 Okl. 73, 64 P.2d 855; Local Union Textile Workers No. 1840, on Behalf of Bradfield v. Commander Mills, 182 Okl. 315, 77 P.2d 705.
Under the terms of
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A contrary construction of Sec. 959, supra, would permit an appeal by transcript to be commenced after the expiration of the maximum period of three months fixed by
Our holding in this case is not inconsistent with the decision in Turner v. Sooner Oil & Gas Co., 206 Okl. 344, 243 P.2d 701. In the cited case the transcript, which was authenticated as a complete copy of the record proper, disclosed itself that the sole instrument omitted therefrom consisted of an exhibit made a part of the petition by reference. It was not clear whether the missing exhibit was in fact attached to the petition on file below. The court undertook a review but confined it to the errors which could be considered without an examination of the missing exhibit. Here the transcript itself does not disclose what is missing from it, nor is it authenticated as a complete record. On the contrary, the certificate affirmatively shows that the transcript contains less than the entire record proper.
The application to supply the omitted parts must be denied.
The proposed amendment may not be effected after the maximum time for appeal has expired; the instrument attached to the petition in error is wholly insufficient as a transcript of the record and this court never acquired jurisdiction of this purported appeal. See Burdick, New Trials & Appeals in Kansas and Oklahoma, par. 179, p. 145.
This cause may not be regarded as an appeal upon the original record because, inter alia, the petition in error was not filed here within 90 days after rendition of the judgment sought to be reviewed. See
The transcript whereon the instant cause is sought to be prosecuted is fatally defective and a nullity. The court is accordingly without jurisdiction to entertain this appeal.
Appeal dismissed.
HALLEY, C. J., JACKSON, V. C. J., and DAVISON, JOHNSON, WILLIAMS, BLACKBIRD, IRWIN and BERRY, JJ., concur.