1. COURTS — Rules — Validity — Deposit for Costs. The district court of the territory of Oklahoma could not 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 specified sum for clerk's costs, conditioned that on the failure to do so the court should dismiss the appeal.
2. APPEAL AND ERROR — Record — Questions Reviewable — Matters Not Apparent of Record. Where the record proper, within Wilson's Rev. Ann. St. 1903, sec. 4606, showed that the trial court dismissed an appeal to it from the probate court on the ground that the deposit of money for costs of the clerk of the district court had not been made as required by rule of court, the ruling could not be justified on the ground of alleged defects not appearing as a part of the record proper.
3. APPEAL AND ERROR — Record — Rules of Trial Court. The rules of the trial court are a part of the record of every cause tried therein.
4. APPEAL AND ERROR — Errors Apparent on the Record — Exceptions. Errors apparent on the judgment roll or record of a cause will be considered by the Supreme Court, though no exceptions were taken in the trial court.
(Syllabus by the Court.)
WILLIAMS, J.
(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.