Opinion
No. 19325
Opinion Filed September 25, 1928. Rehearing Denied October 30, 1928.
(Syllabus.)
1. Appeal and Error — Review of Ruling on Demurrer to Evidence — Necessity for Motion for New Trial.
The ruling on a demurrer to the evidence is a decision occurring on the trial; and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion for new trial be filed within the time prescribed by law.
2. Same — Review of Errors Occurring During Trial — Requisite Procedure as to Motion for New Trial.
Error occurring during the trial cannot be considered by the Supreme Court, unless a motion for new trial, founded upon and including such error, has been made by the complaining party, and acted upon by the trial court, and its ruling excepted to, and afterwards assigned for error in the Supreme Court, where the issues of the case were made up by proper and sufficient pleadings.
Error from District Court, Tulsa County; Edwin R. McNeill, Judge.
Action by Sac Fox Oil Company et al. against D. R. Owens. From an order and judgment of the trial court sustaining a demurrer to plaintiff's evidence and dismissing the action, the plaintiffs appeal. Dismissed.
W. L. Johnson and W. G. Wilson, for plaintiffs in error.
Andrews Andrews, for defendant in error.
This is an appeal from the judgment of the district court of Tulsa county. The plaintiffs in error were plaintiffs below.
A trial was had in the court below on the issues formed by the pleadings, and at the close of plaintiffs' testimony, the defendant demurred to the sufficiency of the evidence to support the allegations of the petition and for judgment thereon, which demurrer was by the court sustained, and the plaintiffs' action dismissed. From this action of the trial court, plaintiffs have appealed. The defendant has lodged in this court his motion to dismiss the appeal, setting forth various grounds therefor. We find it unnecessary to review the grounds of dismissal set forth in the motion, for the reason that an examination of the record in this cause discloses no motion for new trial was filed by the plaintiffs in error bringing the alleged errors to the attention of the trial court.
In the case of Malleck v. Thomas, 109 Okla. 95, 234 P. 1107, this court laid down the following rules:
"The ruling on a demurrer to the evidence is a decision occurring on the trial; and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion for new trial be filed within the time prescribed by law.
"Error occurring during the trial cannot be considered by the Supreme Court, unless a motion for a new trial, founded upon and including such error, has been made by the complaining party, and acted upon by the trial court, and its ruling excepted to, and afterwards assigned for error in the Supreme Court, where the issues of the case were made up by proper and sufficient pleadings."
See, also, Lowenstein v. Todd, 40 Okla. 18, 135 P. 737; Tyler v. Tyler, 44 Okla. 411, 144 P. 1023; Federal Refining Co. v. Fortuna Oil Co., 77 Okla. 23, 185 P. 1080.
The assignments of error set forth in the petition in error filed in this court are all based upon the action of the trial court occurring at or during the trial of the cause, and cannot be reviewed by this court without having been first called to the attention of the trial court by motion for new trial.
The appeal is dismissed.