Opinion
No. 6651
Opinion Filed February 29, 1916.
APPEAL AND ERROR — Presentation Below — Motion for New Trial. Errors occurring during the trial will not be entertained here unless a motion for a new trial, founded upon and including such alleged errors, has first been presented to the trial court, overruled by him, this ruling excepted to, and such ruling afterwards assigned as error in the Supreme Court.
(Syllabus by Matthews, C.)
Error from District Court, Osage County; R.H. Hudson, Judge.
Action by the Commercial National Bank against George F. Trumbly, administrator. Judgment for defendant, and plaintiff brings error. Affirmed.
Horsley, Peters Walton, for plaintiff in error.
J.A. Farrell, for defendant in error.
This action was instituted against the administrator of the maker of a promissory note for the collection of said note. The cause was tried to the court, and judgment was rendered in favor of defendant, and the case is here upon petition in error.
It appears from the record that no motion for a new trial was filed in the trial court. The entire assignment of errors relate to errors alleged to have been committed during the trial, with the exception of the first assignment of error in overruling plaintiffs demurrer to defendant's answer. Plaintiff in error expressly waives his first assignment of error. We have also examined defendant's answer, and find no error in overruling the demurrer to same.
A long and unbroken line of decisions from this court holds that error occurring during the trial will not be entertained here, unless a motion for a new trial, founded upon and including such alleged errors, has first been presented to the trial court, overruled by him, this ruling excepted to, and such ruling afterwards assigned as error in the Supreme court. Kee v. Park et al., 32 Okla. 302, 122 P. 712; St. Louis S. F. R. Co. v. Leake, 34 Okla. 77, 123 P. 1125; St. Louis, I. M. S. Ry. Co. v. Winsley, 39 Okla. 374, 135 P. 19; O'Neil v. James, 40 Okla. 661, 140 P. 141; Avery v. Hays, 44 Okla. 71, 144 P. 624; Carlisle v. Dawson, 52 Okla. 115, 152 P. 825.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.