Opinion
No. 6234
Opinion Filed June 23, 1914.
APPEAL AND ERROR — Presentation Below — Motion for New Trial — Necessity. Action of a trial court in sustaining a demurrer to evidence, directing a verdict, and rendering judgment thereon, are matters occurring at the trial, and, unless a motion for new trial has been filed in the court below, will not be reviewed in this court; but a motion to dismiss the appeal will be sustained.
(Syllabus by the Court.)
Error from County Court, Washita County; L. R. Shean, Judge.
Action by J. S. Hughes against J. F. Meler and another. Judgment for defendants, and plaintiff brings error. Appeal dismissed.
Burnette, Austin Holden, for plaintiff in error.
Jones Bashore, for defendants in error.
This case was tried to a jury in the court below. At the close of the testimony on behalf of plaintiff, who is plaintiff in error, the court sustained a demurrer to the evidence and directed a verdict for defendants; and upon the return of such verdict rendered judgment for defendants. No motion for new trial was filed.
The only errors assigned in the petition in error are: That the court erred in withdrawing the case from the jury and directing a verdict; and that the judgment is contrary to the law and the facts.
Defendants in error have filed in this court their motion to dismiss the appeal, which was duly served on plaintiff in error on the 27th day of May, 1914.
The action of the court below in sustaining a demurrer to the evidence, directing a verdict and rendering judgment thereon, are matters occurring at the trial and will not be reviewed in this court unless a motion for new trial has been filed and acted upon in the court below. Board of Com'rs of Beaver County v. Langston et al., 41 Okla. 715, 139 P. 956, and authorities there cited.
The motion of defendants in error to dismiss the appeal must be sustained, and it is so ordered.
All the Justices concur.