WILLITT v. ASG INDUSTRIES, INC.

WILLITT v. ASG INDUSTRIES, INC.
1978 OK 1
572 P.2d 1296
Case Number: 49725
Decided: 01/10/1978
Supreme Court of Oklahoma

 
DONALD C. WILLITT, ROBERT G. BAUGHMAN, MORRIS W. PARKER, ROBERT N. HAHNE,
GLENN HAHNE, JR., AND DEAN MONIGOLD, APPELLEES,
v.
ASG INDUSTRIES, INC., APPELLANT.

Appeal from the District Court of Okmulgee County; John Maley, Trial Judge.

¶0 A corporate defendant sought to appeal an adverse judgment it believed the trial court rendered against it. On assignment to the Court of Appeals, Division 2 of that Court entered an order dismissing the appeal for lack of a journal entry of judgment. Certiorari having been granted heretofore, the order of dismissal is dissolved, the appeal reinstated, and cause remanded to the Court of Appeals, Division 2. ORDER OF DISMISSAL DISSOLVED; APPEAL REINSTATED; REMANDED TO COURT OF APPEALS, DIVISION 2.

J. Douglas Mann, Rosenstein, Fist & Ringold, Tulsa, for appellant.

Steph & Humphrey, Okmulgee, for appellees.

LAVENDER, Vice Chief Justice:

¶1 The facts and merits of this litigation, including the appeal, are not material to the issue before this court. A summary description shows certain individuals brought an action for severance pay. The employer, and corporate defendant, sought to appeal an adverse judgment that it believed the trial court rendered against it. The Court of Appeals entered an order dismissing the appeal for lack of a journal entry of judgment. That order determined a journal entry of judgment to be a jurisdictional necessity.

¶2 Trial was to the court. Transcript suggests findings and judgment by trial court [572 P.2d 1297] at the conclusion of the hearing with a journal entry to follow.

¶3 Court of Appeals ordered dismissal of the appeal. That order recited that a journal entry of judgment was a jurisdictional necessity, and without it there was nothing to review. Appellant sought rehearing and made application to apply to the trial court for a journal entry of judgment nunc pro tunc. Rules on Perfecting a Civil Appeal, 12 Ch. 15-App. 2, Rule 1.24(b). Rehearing was denied. The application was not acted upon.

¶4 We believe the show cause order, the subsequent dismissal, and the failure to act on the application for leave to seek a journal entry nunc pro tunc in the trial court were not correct. This procedure and jurisdictional recitals in the dismissal order are contra to the footnote

¶5 Order of dismissal dissolved, appeal reinstated, and cause remanded to the Court of [572 P.2d 1298] Appeals, Division 2, with directions as found in this opinion.

¶6 ORDER DISSOLVED; APPEAL REINSTATED; AND CAUSE REMANDED TO COURT OF APPEALS, DIVISION 2.

¶7 WILLIAMS, IRWIN, BERRY, BARNES and DOOLIN, JJ., concur.

¶8 HODGES, C.J., concurs in result.

Footnotes:

1 Concluding portion of the transcript of hearing reads:

"THE COURT: Court is in session. Let the record show both sides are present and ready to proceed. The Court having considered the argument and testimony, the exhibits offered, finds for the Plaintiff in the following manner: That the Administrative Procedure introduced herein, 9329, effective 12/28/71, is in full force and effect at the time of the termination; that the amount due and owing under Roman Numeral VI, paragraph A(4) is applicable. The Court finds that the weekly earnings as set out in A(4) paragraph refers to a base pay and the Court considers that to be the gross pay. The Court does not deduct the two (2) weeks that was testified to as having been paid. In the Plaintiffs' Petition there is a request for an amount for attorney's fee and the Court denies an attorney's fee, but does assess the cost to the Defendant.

"MR. MANN: Show our exception.

"THE COURT: Show an exception to the ruling of the Court - is that for both sides?

"MR. STEPH: Yes, sir. I would ask that he be required to have supersedeas bond.

"THE COURT: Not until he files a Notice of Intent to Appeal and it will be - I don't know at this time what he intends to do. If you will prepare a Journal Entry along these lines, submit it as to form to Mr. Mann, for his approval as to form, showing his exception, then I will sign it." (Emphasis added.)

2 Footnote 1 to Poindexter, supra, states:

"The record contains neither a journal entry of judgment nor an order overruling the motion for new trial. It contains no final order. This failure in the past has been held to result in there being no jurisdiction in the appellate court to resolve anything. Buffalohide v. State, 64 Okl.Cr. 15, 76 P.2d 914 (1938); Schuck v. Moore, 48 Okl. 533, 150 P. 461 (1915). Defective records, however, do not keep the appellate court from asserting jurisdiction if a proper petition in error is timely filed. 12 O.S. 1971 §§ 990 , 992 ; In re Estate of Reagan, Okl.Ct. App., 533 P.2d 1004 (1975). When so fundamental a document as the final order appealed from does not appear in the record, the appellate court before it exercises its jurisdiction should require that the record be made to show such order. If the appellant neglects to make the record so show, after the court's order so directing, the appellate court may justifiably dismiss the appeal. * * *"

Principal subjects in the footnote became editorial headnotes 1, 2, 3 in the reported opinion.