Several other matters are alleged to be error. Of these a majority are presented simply as argument, unsupported by citations of error, and as such they will not be considered by this Court on appeal. Irwin v. Irwin, 416 P.2d 853 (Okla. 1966). Other allegations of error are raised for the first time on appeal and likewise will not be considered in appeal. Vickers v. Horster, 451 P.2d 7, (Okla. 1969). Another error is alleged by virtue of the fact that no pre-trial conference was held in this matter.
As defendant made no mention of any such matter, nor objected to the court's hearing of January 6, 1969, as being in violation of the parties' previous hereinbefore quoted stipulation that the "issue of attorneys fees" be reserved for hearing until after the determination of other issues in the case, it would appear that the court's consideration of that issue (at least for the purpose of determining whether attorney's fees may be awarded a wife, who is not granted a divorce) at that new and later term, had his tacit consent. In view of the foregoing, we are of the opinion that defendant's belated challenge of the trial court's jurisdiction to award plaintiff's attorneys a fee at this second of the court's hereinbefore mentioned hearings after the beginning of its January 1969 term "came too late" (as we said of defendant's attempted challenge, in his motion for a new trial, of the sufficiency of the plaintiff's pleadings in Vickers v. Horster, Okla., 451 P.2d 7, 12) to be effective in this appeal. And we will regard the trial court's judgment of January 23, 1969, as no different from one entered in the exercise of such a court's inherent power over its previous judgments of the same term, where such power is invoked during that term, but not exercised until the following term. Such exercise of that power is not nullified by this Court on appeal, unless it constitutes an abuse of discretion.
In view of such conduct, and her failure to object to any instruction the trial judge employed in submitting the issue of her contributory negligence to the jury, her motion for a new trial came too late to raise any question as to the technical accuracy with which defendants pleaded her fault as the proximate cause, or a contributing cause of the collision; and, absent any claim that the court's said instructions to the jury constituted fundamental error, and a showing of resulting prejudice to her, she is without a predicate upon which to now contend, in this appeal, that the submission of that issue to the jury was a valid ground for granting her a new trial. In so concluding, we adhere to the principles applied in Vickers v. Horster, Okla., 451 P.2d 7, 12, McMillan v. Lane Wood Co., Okla., 361 P.2d 487, and Harris v. Conway, Okla., 343 P.2d 1069. As it is not contended that there was sufficient evidence of defendants' negligence for that issue to be submitted to the jury, it is unnecessary to discuss, in detail, the arguments under that portion of plaintiff's brief labeled "REPLY TO DEFENDANTS' PROPOSITION NO. 1". However, we note that in her zeal to make it appear that, on the basis of the truck driver's own testimony, he knew that the truck's brakes were defective, before it started down the hill toward the bridge, her argument omits mention of his testimony to the effect that the truck's brakes had been functioning properly during its previous use, which included other trips it had made the same day, over the same road, hill, and bridge, transporting other drilling equipment to and from the same two well locations, between which the doghouse was being transported, during the particular trip on which the subject collision occurred.
See Glens Falls Insurance Co. v. Johnson, Okla., 403 P.2d 229, 234, referring to Henderson v. Gifford, Okla., 318 P.2d 404; and the latter opinion's quotation (at p. 409) from Gaines v. Gaines, 207 Okla. 619, 621, 251 P.2d 1044, 1047. See also Vickers v. Horster, Okla., 451 P.2d 7, 13, citing Whitaker v. Town of Tipton, Okla., 426 P.2d 336, and King v. Gants, 77 Okla. 105, 186 P. 960. In view of the above determination, we find it unnecessary to discuss defendant's arguments pertaining to the legal principles that would have governed the parties' relationship, and the proper adjudication of this action, had defendant been a partner, or joint adventurer, with Winters, or with Winters and Longacre, at the time the contract with the Guerrero brothers concerning Pichirilo was entered into.