CHASE v. STATE

CHASE v. STATE
1929 OK 109
275 P. 633
135 Okla. 290
Case Number: 19650
Decided: 03/12/1929
Supreme Court of Oklahoma

CHASE
v.
STATE.

Syllabus

¶0 1. Appeal and Error--Record--Action of Court in Overruling Motion to Vacate Judgment not Reviewable on Transcript.
A motion presented to the trial court and the ruling thereon are not properly a part of the record, and can only be presented and preserved for review on an appeal to the Supreme Court by incorporating the same in a bill of exceptions or case-made, and an alleged error based upon the action of the trial court in overruling the motion to vacate a judgment cannot be reviewed on transcript.
2. Same--Error not Reviewable Where Appeal not Perfected Within Six Months After Action Complained of.
Where the alleged error of the trial court is presented by petition in error with transcript attached, and such appeal is not lodged in this court within six months from the date of the action complained of, this court does not acquire jurisdiction to review the same.

Error from County Court, Tulsa County; John P. Boyd, Judge.

Action by the State against Edwin M. Chase. From an order of the trial court denying motion to vacate judgment, defendant appeals. Dismissed.

Franklin H. Griggs and Roach & Roach, for plaintiff in error.
Byron Kirkpatrick, Christy Russell, and D. C. Arnold, for defendant in error.

PER CURIAM.

¶1 This action was instituted in the county court of Tulsa county upon complaint of Irene Byrnes, charging E. M. Chase with being the father of her unborn child, which child, if born alive, would be a bastard. The defendant, E. M. Chase, entered a plea of not guilty, but on December 9, 1927, withdrew his plea of not guilty and entered a plea of guilty, and upon such plea the court entered a judgment of guilty and that the defendant should pay to Irene Byrnes the sum of $ 750; $ 50 of which to be paid forthwith and the remainder to be paid in monthly installments of $ 50 each. Thereafter, on June 14, 1928, the defendant, Chase, filed his motion to vacate and set aside the judgment upon the grounds that the court was without jurisdiction to enter the judgment so entered on December 9, 1927. This motion was by the trial court overruled on the 16th day of July, 1928. The proceedings of the trial court were prepared and served as a case-made, but were not settled and signed by the trial judge as such. The clerk of the trial court certified to the same as a full, true, correct, and complete transcript of the record. This certificate brings the record prepared, when attached to the petition in error, into this court, but there is no bill of exceptions incorporated therein. The motion to vacate the judgment of December 9, 1927, and the order overruling the same are no part of the record unless made so by bill of exceptions or case-made. McHenry v. Spears, 84 Okla. 28, 202 P. 779; Alexander v. Jacobs, 101 Okla. 149, 224 P. 527. The alleged errors in the petition in error based upon the action of the trial court in overruling the motion to vacate the judgment cannot be reviewed upon transcript, under the rule announced in Davis v. DeGeer, 91 Okla. 111, 216 P. 156, and cases therein cited.