Opinion
No. 28508.
November 22, 1938.
(Syllabus.)
1. Appeal and Error — Overruling of Demurrer to Petition not Reviewable Where no Exception Saved.
Where no exception was saved to the overruling of demurrer to the petition, the action of the court in that respect is not subject to review here.
2. Appeal and Error — Presentation and Reservation in Lower Court of Grounds of Review — Alleged Error in Overruling Demurrer to Plaintiffs' Evidence.
Where, in the trial of a law action before a jury, the defendant at the close of plaintiff's evidence interposes a demurrer thereto, and such demurrer is overruled, and the defendant declines to stand upon such demurrer and introduces his evidence and falls at the close of all the evidence to renew the demurrer or move for an instructed verdict, alleged error in overruling the demurrer will not be considered upon appeal.
3. Appeal and Error — Review of Instructions — Necessity for Exceptions.
Instructions complained of will not be examined by this court unless the complaining party has properly preserved his exceptions to the giving or the refusal to give the instructions of which complaint is made.
Appeal from District Court, Beckham County; T.R. Wise, Judge.
Action by R.L. Neice against Roger Mills County Co-operative Association on contract for wages and profits. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.
McComas McComas and R.N. Linville, for plaintiff in error.
Melrose Minton, for defendant in error.
This is an appeal from a judgment rendered September 24, 1937, in the district court of Beckham county in favor of defendant in error, plaintiff below, against plaintiff in error, defendant below. The parties are hereinafter referred to as they appeared in the trial court.
Defendant present its appeal on the propositions: (1) Error in overruling its demurrer to plaintiff's petition; (2) error in overruling its demurrer to the evidence of plaintiff: and, (3) in substance, that the court erred in giving certain instruction, that the verdict is contrary to law and is not supported by sufficient evidence.
As to defendant's first contention, that there was error in overruling its demurrer to the petition, we find that the record contains no order overruling that demurrer and no exception to such ruling, nor does the recital as to the overruling of defendant's demurrer appearing in the record indicate that defendant preserved any exception to such ruling. Therefore, such charged error is not reviewable. Ward v. Coleman, 170 Okla. 201, 39 P.2d 113; Todd v. Webb, 134 Okla. 107, 272 P. 380.
As to defendant's second contention, that there was error in overruling defendant's demurrer to plaintiff's evidence, we find that, after interposing that demurrer at the first announced close of plaintiff's evidence, and the court's ruling thereon, further evidence was introduced by both parties. No further demurrer at the close of all the evidence was interposed, nor does the record reflect any motion for a directed verdict. In this state of the record such charged error is not reviewable. Local Building Loan Ass'n v. Hudson-Houston Lumber Co., 150 Okla. 44, 3 P.2d 156: Advance-Rumely Thresher Co. v. Alexander, 156 Okla. 150, 9 P.2d 934; Henderson v. Trammell Oil Co., 159 Okla. 250, 15 P.2d 44.
As to defendant's third contention, which in part consists of complaint as to the giving of certain instructions, we find the record reflects no exceptions taken to the giving thereof, rendering the charged error unavailable for review. Wilhite v. Brin, 178 Okla. 339, 62 P.2d 1240; Hapgood v. Vickery, 95 Okla. 181, 217 P. 356. The remaining portion of defendant's third contention, that the verdict is not sustained by sufficient evidence, cannot be considered, the record lacking, as already observed, challenge of the sufficiency of the evidence by demurrer or motion at the close of all the evidence. Panther Oil Gas Co. v. Brown, 170 Okla. 210, 39 P.2d 150; Wilhite v. Brin, supra.
The judgment of the trial court is affirmed.
OSBORN, C. J., and CORN, HURST, and DAVISON, JJ., concur.