APPEAL AND ERROR — Record — Necessity of Case-Made or Bill of Exceptions. A motion presented to the trial court to quash service of summons upon the ground that defendant was a non-resident of the county in which the action was instituted, and that service of summons was made upon him while he was within the county in attendance upon the court under its process, and the ruling of the court thereon, are not properly part of the record and can only be preserved and presented for review on appeal to this court by incorporating the same in a bill of exceptions or case-made.
(Syllabus by the Court.)
HAYES, J.
A motion of defendant in error to quash the service of summons was sustained by the trial court, and it is from the order quashing the service and dismissing the cause that this proceeding in error is prosecuted. The proceeding has been brought in this court by petition in error, with transcript of the record thereto attached. No bill of exceptions was taken by plaintiff in error and there is no case-made. The grounds of the motion to quash were that defendant in error was a non-resident of the county in which the cause was instituted, and that service was made upon him while he was within the county under process of the court. These facts appeared neither from the face of the summons nor the return thereon, but were established by evidence at the hearing upon the motion. The uniform holding of this court has been that motions of this character and the orders of the trial court thereon cannot be reviewed by this court unless the motion and the order thereon have been made part of the record either by bill of exceptions or case-made. Green v. Incorporated Town of Yeager, 23 Okla. 128; Devault et al. v. Merchants' Exchange Co., 22 Okla. 642; Lamb et al. v. Young et al., 24 Okla. 614.
It follows that the proceeding must be dismissed.
All the Justices concur.