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Whitaker v. Chestnut

Whitaker v. Chestnut, 1917 OK 203, 165 P. 160
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Court
Supreme Court of Oklahoma · State Highest Courts
Decided
May 8, 1917
Docket
No. 7640
Judges
Stewart
Citations
165 P. 1601917 OK 20365 Okla. 1221917 Okla. LEXIS 28
Disposition
Appeal dismissed1.
Syllabus
Appeal and Error — Petition in Error; — Order of Court Review. “Order of the court on a’motion to vacate a judgment is not a part of the record proper and cannot be reviewed by this court on petition in error and transcript.” ‘(Syllabus by Stewart, CO
Summary
Error from District Court, Mayes County; Preston S. Davis, Judge. Action by W. J. Whitaker against H. M. Chestnut. Judgment by default, defendant’s motion on his special appearance to vacate and set aside the judgment sustained, and plaintiff files petition in error and transcript.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Stewart

Opinion by STEWART, C.

The plaintiff, W. J. Whitaker, obtained a judgment against the defendant, H. M. Chestnut, in the district court of Mayes county by default. Afterwards, by special appearance, the defendant moved the court to vacate and set aside the judgment, which motion was by the court sustained. The- plaintiff attempts to appeal to this court by petition in error and transcript.

In Orr v. Fulton, 52 Okla. 621 , 153 Pac. 149 , it is said:

*123 “Á motion to vacate a judgment copied into a transcript constitutes no part of the record, and presents no question for review by the Supreme Court on appeal.”

In Menten v. Shuttee, 11 Okla. 381 , 67 Pac. 478 , the Supreme Court of the territory of Oklahoma says:

“Motions presented to the trial court, the rulings thereon, and exceptions, are not properly part of the record, and can only be preserved and presented for review on appeal by incorporating the same into a bill of exceptions or case-made.”

Such is the uniform holding of this court, as shown by the following authorities: Tribal Developing Company v. White Bros., 28 Okla. 525 , 114 Pac. 736 ; McCoy v. McCoy, 27 Okla. 372 , 112 Pac. 1040 ; Veverka v. Frank et al., 41 Okla. 142 , 137 Pac. 682 ; Grady County v. Schrock et al., 53 Okla. 144 , 155 Pac. 882 .

We have no discretion.

Following the authorities cited, the appeal is dismissed.

By the Court: It is so ordered.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 11 cases

View all citing references →
1918: 21921: 11924: 11925: 11932: 11935: 11937: 11938: 11939: 11942: 119182026peak 1918 · 2

Relies on it most ⓘ

  1. Alexander v. Jacobs1924 OK 316, 224 P. 527
  2. McHenry v. Spears1921 OK 394, 202 P. 779
  3. Dime Savings & Trust Co. v. Able1939 OK 333, 94 P.2d 804
  4. Campbell v. Aetna Bldg. & Loan Ass'n1938 OK 354, 79 P.2d 791
  5. Dixon v. Walters1932 OK 767, 16 P.2d 571
  6. Savery v. Cochran1935 OK 1088, 51 P.2d 290

Most recent

  1. Collier v. Collier1942 OK 209, 126 P.2d 243
  2. Dime Savings & Trust Co. v. Able1939 OK 333, 94 P.2d 804
  3. Campbell v. Aetna Bldg. & Loan Ass'n1938 OK 354, 79 P.2d 791
  4. Jones v. Welborn1937 OK 496, 71 P.2d 955
  5. Savery v. Cochran1935 OK 1088, 51 P.2d 290
  6. Dixon v. Walters1932 OK 767, 16 P.2d 571

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 6

DepthCaseCited by
Menten v. Shuttee, 1902 OK 2, 67 P. 478 46
Tribal Dev. Co. v. White Bros., 1911 OK 117, 114 P. 736 44
McCoy v. McCoy, 1910 OK 345, 112 P. 1040 21
Orr v. Fulton, 1915 OK 927, 153 P. 149 7
Veverka v. Frank, 1913 OK 735, 137 P. 682 5
Grady Cnty. v. Schrock, 1916 OK 242, 155 P. 882 3

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