Opinion
No. 2830
Opinion Filed August 6, 1913. Rehearing Denied September 23, 1913.
APPEAL AND ERROR — Failure to Except — Effect. Failure to except to the order overruling a motion for a new trial is a waiver of error as to such ruling, and all alleged errors of law occurring at the trial, for which a new trial might be granted.
(Syllabus by Sharp, C.)
Error from County Court, Rogers County; H. Tom Kight, Judge.
Action by Gus Winsley against the St. Louis, Iron Mountain Southern Railway Company. Judgment for plaintiff, and defendant brings error. Appeal dismissed.
W. E. Hemingway, Lovick P. Miles, Thos. B. Pryor, and Vincent M. Miles, for plaintiff in error.
A. H. Meyer and C. S. Wortman, for defendant in error.
Judgment for plaintiff was rendered January 14, 1911, and on the same day the defendant filed its motion for a new trial. The original case-made fails to show that the motion for a new trial was ever acted on by the court, but does show that judgment was rendered on the verdict of the jury. Afterwards an order of this court was obtained, permitting plaintiff in error to withdraw the case-made from the record, for the purpose of having it corrected, in order to show that the motion for a new trial was by the court considered and overruled. There is now in the files in this case a certified copy of the motion for a new trial, with a brief order as follows: "Motion for a new trial heard and overruled. Thereupon 90 days given to make and serve case-made, ten days to suggest amendments thereto, to be settled and signed upon five days' notice, 30 days from this date given to file supersedeas bond." It nowhere appears, however, either in the original case-made, or the additional certificate mentioned, that the defendant below excepted to the order overruling its motion for a new trial.
As all the errors set forth in the petition in error are alleged to have occurred on the trial of the cause, it follows that there is nothing before us for review. A failure to except to the order of the court overruling and denying the motion for a new trial is a waiver of error as to such ruling, and all alleged errors of law occurring at the trial, for which a new trial might be granted. Vaughn Lbr. Co. v. Missouri Mining Lbr. Co., 3 Okla. 174, 41 P. 81; City of Enid v. Wigger, 15 Okla. 507, 85 P. 697; Alexander et al. v. Oklahoma City, 22 Okla. 838, 98 P. 943; Stinchcomb et al. v. Myers, 28 Okla. 597, 115 P. 602; Maggart v. Wakefield et al., 31 Okla. 751, 123 P. 1042; Kee v. Park et al., 32 Okla. 302, 122 P. 712.
The appeal should therefore be dismissed.
By the Court: It is so ordered.