Opinion
No. 29885.
January 21, 1941. Rehearing Denied February 25, 1941.
(Syllabus.)
APPEAL AND ERROR — Instructions not reviewable in appeal by transcript.
Instructions given in a trial of a cause, in order to be reviewed, must be incorporated in a case-made or bill of exceptions and cannot be presented by transcript.
Appeal from District Court, Tillman County; Jno. B. Wilson, Judge.
Action for personal injuries by W.C. Sanderson against C.E. Caldwell. Verdict and judgment for the defendant, and plaintiff appeals. Affirmed.
F.H. Hurst and R.L. Christian, both of Frederick, for plaintiff in error.
Roe Roe, of Frederick, for defendant in error.
This action was instituted by plaintiff in error, hereinafter referred to as plaintiff, against the defendant in error, hereinafter referred to as defendant, to recover damages for personal injuries alleged to have been sustained as the result of negligence of the defendant in the operation of an automobile.
Trial was had to a jury and resulted in a verdict in favor of the defendant. Motion for new trial was overruled, and plaintiff has appealed by transcript. The sole error presented is the giving of a certain instruction. The alleged error is one which may not be reviewed on transcript, since instructions of the court are no part of the record unless made so by incorporating them in a case-made or bill of exceptions. Stone-braker-Zea Cattle Co. v. Hilton, 34 Okla. 225, 124 P. 1062. As said in Alexander v. First National Bank of Duncan, 136 Okla. 251, 277 P. 667:
"An assignment of error which requires for its determination an examination of the proceedings at the trial will not be reviewed where the record is certified as a transcript and is insufficient to constitute a case-made."
The sole error urged being one which cannot be reviewed, the judgment of the trial court will not be disturbed.
Judgment affirmed.
WELCH, C. J., CORN, V. C. J., and BAYLESS, HURST, and DAVISON, JJ., concur.