Town of Okemah v. Allen , 48 Okla. 757 ( 1915 )

Robert Allen sued the town of Okemah, in the district court of Okfuskee county, to recover alleged damages caused by the construction of a certain water tower, which was situated in the public street adjacent to the property of the plaintiff. December 13, 1912, the issues of fact were submitted to a jury, which resulted favorably to the plaintiff, and defendant appeals, alleging as error: (1) In admitting certain evidence of the plaintiff; (2) in giving certain instructions to the jury; (3) the verdict of the jury was excessive, and was unwarranted under competent and admissible testimony submitted by the plaintiff to sustain his cause of action; (4) in overruling the defendant's motion for a new trial.

We get from the record that the trial judge on December 13, 1912, signed a journal entry, awarding judgment to the plaintiff, and on January 8, 1913, signed a journal entry denying the motion for a new trial, and gave time to make and serve case-made, etc., and within the time, and on February 15, 1915, signed a journal entry, extending the time to make and serve the case, but none of these journal entries mentioned, especially the latter, appear to have been filed with the clerk of the court, or ever became a part of the record in this case. Therefore we are powerless to give the alleged errors further consideration.

In Walker v. Board of County Commissioners of Grant County,44 Okla. 350, 144 P. 793, Harrison, C., said:

"These questions, however, are not properly presented here, for the reason that it appears from the case-made that neither the original petition, answer, agreed statement of facts, nor journal entry of judgment, were ever filed with the clerk of the district court. That is, the purported petition, answer, agreed statement of facts, and journal entry presented here bear no copy of filing marks, nor other evidence that their originals were ever filed with the district clerk, * * * and therefore, under Mobley v. C., R.I. P. Ry. Co., 44 Okla. 788,145 P. 321, present nothing to this court for decision."

See, also, Morris v. Caulk, 44 Okla. 342, 144 P. 623.

The appeal is therefore dismissed.

By the Court: It is so ordered.