Opinion Filed November 19, 1912.
APPEAL AND ERROR — Review — Motion for New Trial. 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.
(Syllabus by Sharp, C.)
Error from Wagoner County Court; Wm. W. Gresham, Special Judge.
Action by James L. Dyer against the St. Louis, Iron Mountain Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Lovick P. Miles and Vincent M. Miles, for plaintiff in error.
E. L. Moore, for defendant in error.
Plaintiff in error in its petition in error assigns error committed by the trial court in the following particulars: (1) Judgment is contrary to law; (2) judgment is contrary to evidence; (3) judgment is excessive; (4) error in refusing to give instruction No. 1, requested by the defendant; (5) error in refusing to give instruction No. 4, requested by the defendant; (6) error in giving instruction No. 3; (7) error in giving instruction No. 6 — and to all of which defendant excepted.
Motion for new trial was filed and overruled, to which defendant excepted. But the action of the court in overruling said motion for a new trial has not been assigned as error in plaintiff in error's petition in error in this court, and therefore none of the matters urged in its brief can be considered. All of the errors assigned are those occurring during the trial, and where plaintiff in error fails to assign as error, in its petition in error, the overruling of its motion for a new trial, 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, and such alleged errors cannot, therefore, be reviewed. 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.
The judgment of the trial court should therefore be affirmed.
By the Court: It is so ordered.