Opinion
No. 2237
Opinion Filed May 9, 1911.
APPEAL AND ERROR — Review — Necessity for Motion for New Trial. All matters occurring on the trial which are proper causes for a motion for a new trial will be deemed to be waived, unless presented by motion for new trial.
(Syllabus by the Court.)
Error from District Court, Muskogee County; John H. King, Judge.
Action between Frank C. Garner and Pete Scott, administrator of the estate of Sarilda Scott, and another. From the judgment, Garner brings error. Dismissed.
Robert F. Blair, for plaintiff in error.
Spencer E. Sanders, for defendant in error.
This case presents error from the district court of Muskogee county. A motion has been filed to dismiss the same on the ground, among others, that no motion for a new trial was filed as a predicate for the assignments of error set forth in the petition in error. To this counsel for plaintiff in error responds by insisting that the questions raised are of such character that they may be reviewed here, without a motion for a new trial filed and passed on by the trial court. An inspection of the petition in error, however, discloses that the grounds set forth therein upon which counsel seek to reverse the judgment of the trial court are such as were necessary to be presented by a motion for a new trial to the trial court, and that an absence of such motion will, in this court, be held to be waiver thereof. The rule is stated by the Supreme Court of the territory of Oklahoma in the case of Glaser v. Glaser, 13 Okla. 389, 74 P. 944, as follows:
"All matters occurring on the trial which are proper causes for a motion for new trial will be deemed to be waived, unless presented by motion for new trial, and this court will not consider them after having been once waived."
Additional citation of authority is unnecessary, as there is no exception to this rule.
The motion to dismiss is therefore sustained.
All the Justices concur.