CHASE et al. v. BYRNES

Oklahoma Supreme Court1930-12-09No. No. 21491

147 Okla. 118

Summary · law.co

Holding. The court dismissed the appeal for lack of jurisdiction because the appellants failed to give notice of appeal within ten days of judgment as required by statute, and did not incorporate a bill of exceptions into their transcript to bring the motion for new trial proceedings before the appellate court.

The defendants appealed a judgment rendered against them in Tulsa County District Court on February 28, 1930. The appellees moved to dismiss the appeal, arguing that the appellants failed to comply with statutory procedural requirements for perfecting an appeal. The record showed that no notice of appeal was filed either when the judgment was rendered or within the ten-day period required by Oklahoma law. Additionally, the appellants presented their record as a transcript rather than as a case-made record, but included no bill of exceptions to incorporate the motion for new trial and related proceedings.

The court found that the statutory requirement to give notice of appeal within ten days of judgment is mandatory, and that failure to do so deprives the appellate court of jurisdiction. The court also clarified that when a record is presented by transcript (rather than bill of exceptions), proceedings related to motions for new trial cannot be brought before the appellate court unless properly incorporated through a bill of exceptions. Because neither notice of appeal was timely given nor was a bill of exceptions included, the court lacked jurisdiction to review the trial court's judgment.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether timely notice of appeal is mandatory to confer appellate jurisdiction
Whether failure to give notice of appeal within the statutory period deprives the appellate court of jurisdiction
Whether a motion for new trial can be reviewed when a record is presented by transcript without a bill of exceptions

Procedural posture

Appellants appealed a judgment rendered against them in the district court, and appellees moved to dismiss the appeal for failure to comply with notice of appeal requirements.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

This is an appeal from the judgment of the district court of Tulsa county rendered on the 28th day of February, 1930, in an action wherein the plaintiffs in error were defendants.

A trial was had on the issues of fact joined by the pleadings and judgment rendered for the plaintiff in the action, from which the defendants appeal. The record attached to the petition in error was prepared as a case-made, but was never settled and signed by the trial judge as such, but within the bound volume presenijed and attached to the petition in error is a complete copy- of the judgment roll duly certified by the court clerk as a transcript. An examination of the transcript does not disclose any notice of appeal was given at the time, or within 10 days after, the judgment was rendered, and the defendant in error has filed in this court a motion to dismiss the appeal upon the grounds that this court iswithout jurisdiction to review the judgment rendered in the trial court, from which the appeal is taken, for the reason no notice of appeal was given within the time allowed by law.

Section 782, C. O. S. 1921, requires notice of appeal to be given at the time, or within 10 days after, the judgment or order appealed from is rendered. This court has held the giving of such notice within time specified in said section is mandatory, and where such notice is not given, this court is without jurisdiction to review the judgment or order appealed from. Kershaw v. Board of County Commissioners, 135 Okla. 302, 275 Pac. 621; Oliver v. Kelly, 129 Okla. 121, 263 Pac. 649. Plaintiffs in error in their response contend that a motion for new trial was necessary in this case and notice of appeal given prior to the overruling of the motion for new trial would have been premature under the rule announced by this court in the case of Callander v. Hopkins, 97 Okla. 41, 222 Pac. 672; Cameron v. Cameron, 96 Okla. 98, 220 Pac. 889. This contention would he correct if the record of the •proceedings upon the trial of the cause, the motion for new trial, and the overruling of the same « ere presented by bill of exceptions or c-ase-made, but where the record is presented by transcript, the proceedings upon the trial of the cause, the motion for new trial, and the order overruling the same arc not brought before the court for review unless properly incorporated therein by bill of exceptions. Brigham v. Davis, 126 Okla. 99, 258 Pac. 740; Davis v. DeGeer, 91 Okla. 111, 216 Pac. 156; Kershaw v. Board of County Commissioners, supra. In the ease last cited this court announced the following rules:

“A party desiring to appeal may attach to his petition in error a transcript of the record, and if he desires to bring to this court gny part of the proceedings other than the record as provided in section 688, O. O. S. 1921, he must incorporate the same into the record by bill of exceptions.

“A motion for new trial and an order overruling the same are no part of the record of the trial court which can be brought to this court by transcript.

“Where a party desiring to appeal fails to give notice in open court, either at the time the judgment appealed from is rendered or within 10 days thereafter, of his intention to ■ appeal to the Supreme Court, this court is without jurisdiction to review such judgment and an appeal therefrom will be dismissed.”

No bill of exceptions is incorporated in the transcript, and no notice of appeal having been given as required by section 782, O. Q. S. 1921, this court is without jurisdiction to review the judgment appealed from.

The appeal is dismissed.