
    WALTHAM PIANO CO. v. WOLCOTT.
    No. 4076.
    Opinion Filed September 22, 1913.
    (135 Pac. 339.)
    APPEAL AND ERROR — Record—Inclusion of Evidence — Conclusiveness of Recital. Where the case-made fails to contain all the evidence, the appeal will be dismissed,, where the errors relied on for reversal involve a consideration of the evidence, and that, too, although the case-made recites, in effect, that it contains all the evidence.
    ('Syllabus by the Court.)
    
      Error from, ■Superior Court, Muskogee County; Farrar L. McCain, Judge.
    
    Action by the Waltham Piano Company against J. E. Wolcott. From a judgment for defendant,'-' jllaintiff brings error.
    Dismissed.
    ' E. H. Bispham, Jno. II. Hosier, Bush Greenslade, ancl Marry C. Dodson, for plaintiff in error. .
    
      Beall & Neff, for defendant in error.,
   TURNER, J.

As an investigation of the case-made discloses that certain letters evidencing the contract upon which defendant recovered in the trial court are omitted therefrom, and the briefs of plaintiff in error disclose that the errors relied upon for reversal cannot be passed upon without a consideration of the evidence, the motion to dismiss is sustained, and that, too, although the case-made recites that it contains “all the evidence offered, introduced, or received upon the trial.” Anderst v. Atchison, T. & S. F. Ry. Co., 19 Okla. 206, 91 Pac. 894; Ragains v. Geiser Mfg. Co., 10 Okla. 544, 63 Pac. 687; Arnold v. Moss, 27 Okla. 524, 112 Pac. 995; Pierce v. Engelkeimeier, 10 Okla. 308, 61 Pac. 1047; Citizens' Bank & Trust Co. v. Dill, 30 Okla. 1, 118 Pac. 374.

Although this second motion to dismiss was served and subsequently filed, January 13, 1913, the same has received no response from plaintiff in error. Dismissed.

All the Justices concur.  