HOYT SHOE CO. v. CUFF

HOYT SHOE CO. v. CUFF
1915 OK 220
148 P. 695
46 Okla. 178
Case Number: 4373
Decided: 04/27/1915
Supreme Court of Oklahoma

HOYT SHOE CO.
v.
CUFF.

Syllabus

¶0 1. APPEAL AND ERROR--Brief--Affirmance. Where the brief of plaintiff in error does not contain an abstract or abridgment of the pleadings, proceedings, and facts upon which he relies, and the specifications of error are not separately set forth and numbered, the judgment may be affirmed.
2. APPEAL AND ERROR--Presentation for Review--Evidence-- Recital in Case-Made. Where consideration of the errors assigned involves an examination of the evidence, and the casemade does not include a proper recital that it contains all the evidence produced at the trial, the question so presented will not be reviewed in the Supreme Court.

Error from County Court, Blaine County; George W. Ferguson, Judge.

Action by Hoyt Shoe Company against J. J. Cuff. Judgment for defendant, and plaintiff brings error. Affirmed.

J. P. Wishard, for plaintiff in error.
Seymour Foose and R. C. Brown, for defendant in error.

BLEAKMORE, C.

¶1 This case was commenced in the county court of Blaine county by the plaintiff in error, as plaintiff, against the defendant in error, as defendant, on an open account for certain shoes sold and delivered by plaintiff to defendant. Defendant answered by way of general denial and pleaded failure of consideration, breach of warranty, damages by reason thereof, etc. There was trial to a jury, resulting in judgment for defendant; and plaintiff has brought the case here for review.

¶2 Defendant here objects to the consideration of the brief of plaintiff, and moves an affirmance of the judgment of the trial court for the following reasons:

(1) That plaintiff has failed to comply with rule 25 (38 Okla. x, 137 P. xi) of this court, providing:

"The brief of the plaintiff in error in all cases shall contain an abstract or abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements horn the record as are necessary to a full understanding of the questions presented to this court for decision, so that no examination of the record itself need be made in this court. * * * The brief shall contain the specifications of errors complained of, separately set forth and numbered. * * *"

(2) That there is no recital in the case-made affirmatively showing that it contains all the evidence introduced on the trial.

¶3 The brief of plaintiff' does not meet the requirements of the rule, supra, in that it does not contain an abstract or abridgment of the pleadings, proceedings, and facts upon which plaintiff relies, as prescribed herein, and the specifications of error are not separately set forth and numbered. For this reason, the judgment may be affirmed. Moore v. Adams, 40 Okla. 100, 136 P. 410.

¶4 Again, consideration of the errors assigned necessarily involves an examination of the evidence; and, inasmuch as the case-made includes no proper certificate, or averment by way of recital therein, that it contains all the evidence produced at the trial, we are precluded from reviewing the questions so presented. Worrell v. Fellows, 39 Okla. 769, 136 P. 750; School District v. School District, 42 Okla. 228, 140 P. 1144.

¶5 The judgment of the trial court is affirmed.