APPEAL AND ERROR — Assignments of Error — Motion for New Trial — Denial. Where appellant fails to assign in his petition in error as error the overruling of a motion for a new trial, no question that 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 cannot be reviewed. Meyer v. James, 29 Okla. 7, 115 P. 1016. (Syllabus by Robertson, C.)

SAME — Review — Assignment of Error. Where appellant fails to assign in his petition in error the overruling of a motion for a new trial, no question that 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 cannot be reviewed. Meyer v. James, 29 Okla. 7, 115 P. 1016. (Syllabus by Robertson, C.)

The issues on the motion for a new trial relate to rulings of the court made at and during the progress of the trial, and in order to have them reviewed it is necessary that a motion for new trial be presented to the trial court, and error assigned upon the order overruling the same. Meyer v. James, 29 Okla. 7, 115 P. 1016; St. L., I. M. S. Ry. Co. v. Dyer, 36 Okla. 112, 128 P. 265; Perkins v. Perkins, 37 Okla. 693, 132 P. 1097; Board Co. Com'rs of Beaver County v. Langston, 41 Okla. 715, 139 P. 956. "The petition for new trial upon grounds of newly discovered evidence presented only matters occurring subsequent to the trial and the rendition of the judgment, and did not affect proceedings occurring at the trial which were presented by the motion.

The issues on the motion for a new trial relate to rulings of the court made at and during the progress of the trial, and in order to have them reviewed it is necessary that a motion for new trial be presented to the trial court, and error assigned upon the order overruling the same. Meyer v. James; 29 Okla. 7, 115 P. 1016; St. L., I. M. S. Ry. Co. v. Dyer, 36 Okla. 112, 128 P. 265; Perkins v. Perkins, 37 Okla. 693, 132 P. 1097; Board Co. Com'rs of Beaver County v. Langston et al., 41 Okla. 715, 139 P. 956. The petition for new trial upon grounds of newly discovered evidence presented only matters occurring subsequent to the trial and the rendition of the judgment, and did not affect proceedings occurring at the trial which were presented by the motion.

There are eight assignments of error in the petition in error, all of which, except the third, which is, "The court erred in overruling defendants' demurrer to plaintiff's petition," are alleged errors occurring during the trial. The overruling of the motion for a new trial is not assigned as error in the petition in error, and it therefore follows that none of the assignments of error, except the third, can be considered here. Beall v. Mutual Life Ins. Co., 7 Okla. 285, 54 P. 474; Martin et al. v. Gassert, 17 Okla. 177, 87 P. 586; Kimbriel v. Montgomery, 28 Okla. 743, 115 P. 1013; Meyer v. James, 29 Okla. 7, 115 P. 1016; George v. Moore, 32 Okla. 842, 124 P. 36; Turner v. First Nat. Bank, 40 Okla. 498, 139 P. 703; Adams v. Norton et al., 41 Okla. 497, 139 P. 254. The only question properly presented for review is the sufficiency of the petition, as against a general demurrer.

It has been repeatedly held by this court that, to have errors occurring at the trial of a case reviewed by this court, a motion for a new trial must have been filed and acted on by the trial court, and exceptions saved to the judgment of the court in passing on the motion for a new trial. Martin v. Gassert, 17 Okla. 177, 87 P. 586; Meyer v. James, 29 Okla. 7, 115 P. 1016; Board of Com'rs of Beaver County v. Langston, 41 Okla. 715, 139 P. 956. No motion for a new trial having been filed in this case, and all of the alleged errors complained of having occurred at the trial, the appeal should be dismissed. We therefore recommend that the appeal be dismissed.

Such an assignment is a prerequisite, where it is sought to have reviewed here any alleged errors of the court occurring at the trial below; and, without such an assignment, such errors cannot be considered and passed upon by this court. Martin et al. v. Gassert, 17 Okla. 177, 87 P. 586; Meyer v. James, 29 Okla. 7, 115 P. 1016; Burrus v. Funk, 29 Okla. 677, 119 P. 976; Hunter v. Hines et al., 33 Okla. 590, 127 P. 386; St. L. S. F. R. Co. v. Davis, 39 Okla. 98, 134 P. 21. We have examined with some care the record proper, and find that the petition filed in this case is sufficient in its averments to warrant the decree rendered; that the issues in the case were raised by the defendants through the medium of a general denial; that the lease involved, together with its assignment from one to the other of the defendants, with certain other written instruments appertaining thereto, were introduced as evidence in the case during the progress of the trial.

"As the overruling of defendant's motion for a new trial is not assigned as error in the petition in error, the only error therein assigned which we can review is that the court erred in sustaining said demurrer." In Meyer v. James, 29 Okla. 7, 115 P. 1016, it is held: "Where appellant fails to assign in his petition in error, as error, the overruling of a motion for a new trial, no question that 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 cannot be reviewed."

Therefore none of the matters urged in their brief can be considered. All of the errors assigned are those charged to have occurred during the progress of the trial, and it is a rule well established that, where the appellants fail to assign as error the overruling of the motion for a new trial in the petition in error, no question which seeks to review errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court. Adams v. Norton et al., 41 Okla. 497, 139 P. 254; J.J. Douglas Co. v. Sparks, 7 Okla. 259, 54 P. 467; Beall v. Mutual Life Ins. Co., 7 Okla. 285, 54 P. 474; Martin et al. v. Gassert, 17 Okla. 177, 87 P. 586; Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Kimbriel v. Montgomery, 28 Okla. 743; 115 P. 1013; Meyer v. James, 29 Okla. 7, 115 P. 1016; St. Louis, I.M. S. Ry. Co. v. Dyer, 36 Okla. 112, 128 P. 265; Jennings Co. v. Dyer et al., 41 Okla. 468, 139 P. 250. For the reason herein set out, we recommend that the judgment of the trial court be affirmed.

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 his petition in error, no question is properly presented in the Supreme Court to review errors alleged to have occurred during the progress of the trial in the lower court. See 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. The plaintiffs 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, there is nothing properly before this court for review.