Stone v. Clogston , 25 Okla. 162 ( 1909 )

(after stating the facts as above). That the district court of the territory of Oklahoma had no power to impose a rule requiring a party appealing a case from the probate court to the district court to deposit with the clerk of the district court a certain sum of money for the costs of the clerk, and a failure to do so after a certain designated time after the transcript of the trial court is deposited with the clerk should be ground for the dismissal of the appeal, has been repeatedly held by this court. Goodwin et al. v. Bickford, 20 Okla. 91, 93 P. 548; Holmes v.Offield, 22 Okla. 552, 98 P. 341.

The counsel for defendant in error attempts to point out defects that would have justified the trial court in dismissing said appeal, but it is sufficient answer to say that the same do not appear as a part of the record proper (section 4606, Wilson's Rev. Ann. St. 1903; Devault et al. v. Merchants'Exch. Co., 22 Okla. 624, 98 P. 342), which shows that the trial court dismissed the appeal on the express ground that such deposit had not been made. It is further insisted that no exception was taken to the action of the court in dismissing such appeal, but in the case of Goodwin et al. v. Bickford,supra, that identical question was raised, and it was there held:

"(1) The rules of a trial court are a part of the record of every cause tried therein. (2) Errors apparent upon the judgment roll or record of a cause will be considered by this court, although no exceptions were taken thereto in the trial court."

The questions raised in this case are identical with those passed on in that case. The judgment of the lower court is reversed and remanded, with instructions to set aside the order dismissing the appeal, and that same be reinstated.

All the Justices concur.