LESTER v. J. J. GWIN CO.

LESTER v. J. J. GWIN CO.
1930 OK 137
286 P. 339
142 Okla. 175
Case Number: 20790
Decided: 03/25/1930
Supreme Court of Oklahoma

LESTER
v.
J. J. GWIN CO.

Syllabus

¶0 1. Appeal and Error--Requisite Contents of Record--Order Overruling Motion for New Trial--Mere Recital in Clerk's Minutes not an Order.
A mere recital in the court clerk's minutes that a motion for new trial was overruled does not constitute a judgment or order overruling motion for new trial, and where no order overruling motion for new trial appears in the record and a motion for new trial is necessary, there is nothing before this court for review.
2. Same--Time for Appeal by Transcript not Extended by Motion for New Trial.
A motion for new trial and the order of the court overruling the same are no part of the record of the trial court which can be brought to this court by transcript, and the filing of such motion and the making of an order overruling the same do not extend the time in which to file proceedings in this court for review, where the appeal is by transcript.

Error from District Court, Seminole County; George C. Crump, Judge.

Action by J. J. Gwin Company against J. W. Lester. Judgment for plaintiff, and defendant appeals. Dismissed.

Robert Burns, for plaintiff in error.
C. Guy Cutlip and Thomas J. Horsley, for defendant in error.

PER CURIAM.

¶1 This cause is before the court on a motion to dismiss the appeal for the reason the record presented for review does not contain a copy of the order overruling the motion for new trial.

¶2 An examination of the record presented fails to disclose a copy of the order overruling the motion for new trial. The only showing that the motion for new trial was overruled is by a copy of the clerk's minutes as shown by the minute book kept by the clerk, and which are not shown to have been recorded in the journal of the court.

¶3 This court in a number of cases has held that the clerk's minutes, though copied into the record presented to this court, are insufficient to show the overruling of the motion for new trial. Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067; Merchants' Southwest Fireproof Warehouse Co. v. Johnston, 113 Okla. 146, 243 P. 186; City of Tulsa v. Kay, 124 Okla. 243, 255 P. 684; Argentoes v. Fidelity Bldg. & Loan Ass'n, 127 Okla. 183, 260 P. 55; Alexander v. First Nat. Bank of Duncan, 136 Okla. 251, 277 P. 667; Cunningham v. McCray, 137 Okla. 300, 279 P. 354.

¶4 We have also frequently held that it is necessary for the record presented to have incorporated therein a copy of the order overruling the motion for new trial. Lillard v. Meisberger, supra; City of Tulsa v. Kay, supra; Argentoes v. Fidelity Bldg. & Loan Ass'n, supra; Alexander v. First Nat. Bank of Duncan, supra; Cunningham v. McCray, supra.