Opinion
No. 5615
Opinion Filed September 21, 1915.
APPEAL AND ERROR — Presentation for Review — Denial of New Trial — Assignment of Error. Where plaintiff in error fails to assign as error, in his petition in error, the overruling of a motion for a new trial, no question which seeks to have reviewed errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court, and such alleged errors cannot therefore be considered.
(Syllabus by Mathews, C.)
Error from District Court, Logan County; A.H. Huston, Judge.
Action by E.J. Lamb against James Milne and another. Judgment for defendants, and plaintiff brings error. Affirmed.
J.B. Drennan, for plaintiff in error.
Horace Speed, for defendants in error.
Plaintiff in error, in his petition in error filed in this court, sets out the following assignments of error:
"(1) Irregularity in the proceeding of the court, by which the plaintiff was prevented in having a fair trial; (2) that the judgment was not sustained by the evidence; (3) that the judgment is contrary to the law; (4) error in law committed at the trial and excepted to by the plaintiff; (5) error of the court in its construction of the contract, marked 'Exhibit A,' to the plaintiff's amended petition in holding that the said contract is an option."
It will be noted that the action of the trial court in overruling his motion for a new trial has not been assigned as error in the petition in error filed in this court. Our courts have uniformly held this omission to be fatal when it is sought, as in the case at bar, to have this court review the errors alleged to have been committed during the progress of the trial in the court below. Beugler et al. v. Polk, 46 Okla. 403, 148 P. 990, and authorities there cited.
For this reason we recommend that the judgment of the trial court be affirmed.
By the Court: It is so ordered.