Opinion
No. 1829
Opinion Filed May 14, 1912.
APPEAL AND ERROR — Assignment of Error — Motion for New Trial. Where the plaintiff in error fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred in the progress of the trial in the lower court.
(Syllabus by Brewer, C.)
Error from District Court, Muskogee County; John H. King, Judge.
Action by Carrie A. Moore, administratrix of the estate of John J. Moore, against John B. George. Judgment for plaintiff, and defendant brings error. Affirmed.
Crump Curd, for plaintiff in error.
Jay A. Anderson, for defendant in error.
This is a suit for commission on the sale of real estate. It was tried in the district court of Muskogee county on the 14th day of June, 1909, before a jury, which returned a verdict for the plaintiff in the sum of $200. This appeal is presented to review errors alleged to have occurred during the trial.
The petition in error and the assignments of error urged in plaintiff in error's brief are, first, the court erred in admitting as evidence, over the objection of defendant, copy of letter introduced by plaintiff marked Exhibit A; second, the verdict of the jury was contrary to law; third, the verdict of the jury was contrary to the evidence. There was a motion for a new trial filed in this case, which was overruled, and to which action of the court in overruling same exceptions were saved, but the overruling of the motion for new trial is not assigned as error in the petition in error or in the brief of plaintiff arguing the assignments of error.
It is a well-established rule in this court that, where the plaintiff in error fails to assign as error the overruling of a motion for a new trial in a petition in error, no question is properly presented in the Supreme Court to review errors alleged to have occurred in the progress of the trial in the lower court. McDonald et al. v. Wilson, 29 Okla. 309, 116 P. 920; Cox v. Lavine, 29 Okla. 312, 116 P. 920; Kimbriel v. Montgomery, 28 Okla. 743, 115 P. 1013; Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Martin et al. v. Gassert, 17 Okla. 177, 87 P. 586; Meyer v. James, 29 Okla. 7, 115 P. 1016; O. B. Kee v. Park et al., ante, 122 P. 712.
The plaintiff in error therefore having failed to assign or specify as error the action of the court in overruling the motion for a new trial, and as the errors assigned and specified are predicated upon alleged errors occurring at the trial, under the above well-established rule, there is nothing properly before this court for review.
The case should therefore be affirmed.
By the Court: It is so ordered.