NEW VINITA HARDWARE CO. v. PORTER

NEW VINITA HARDWARE CO. v. PORTER
1915 OK 71
146 P. 14
45 Okla. 470
Case Number: 3974
Decided: 01/26/1915
Supreme Court of Oklahoma

NEW VINITA HARDWARE CO. et al.
v.
PORTER.

Syllabus

¶0 1. APPEAL AND ERROR--Presentation for Review--Rulings on Evidence--Brief. The action of the lower court in the exclusion or admission of evidence will not be reviewed by the Supreme Court, unless the evidence complained of is set out in the brief of the plaintiff in error, as required by rule 25 (38 Okla. x, 137 P. xi,) although properly assigned as error.
2. APPEAL AND ERROR--Presentation for Review--Instructions--Brief. Where plaintiff in error fails to comply with rule 25 (38 Okla. x, 137 P. xi,) and set forth the instructions complained of in totidem verbis, alleged error in giving or refusing the same will not be considered here.
3. APPEAL AND ERROR--Dismissal--Brief. Where plaintiff in error fails to comply with rule 25 (38 Okla. x, 137 P. xi,) relative to briefing, the appeal may be dismissed.

Error from County Court, Craig County; S. F. Park, Judge.

Action by H. L. Porter against the New Vinita Hardware Company and others. Judgment for plaintiff, and defendants bring error. Appeal dismissed.

Theo. D. Frear, for plaintiff in error.
E. M. Probasco and A. D. Bennett, for defendant in error.

BROWN, J.

¶1 Rule 25 (38 Okla. x, 137 P. xi), relative to briefing a case for this court by plaintiff in error, among other things, provides:

"Where a party complains on account of the admission or rejection of testimony, he shall set out in his brief the full substance of the testimony, to the admission or rejection of which he objects, stating specifically his objection thereto. Also, where a party complains of instructions given or refused, he shall set out in totidem verbis in his brief separately the portions to which he objects or may save exceptions."

¶2 The brief filed by plaintiff in error in this case fails to comply with either of the provisions of the above-quoted portion of said rule; and, while there are numerous assignments of error, a correct determination of the questions involved cannot be reached without an examination of the evidence and instructions from the record itself. The purpose of the above rule is to require counsel to present such errors in such manner as to render unnecessary an examination of the record in determining the case. See Avants v. Bruner, 39 Okla. 730, 136 P. 593; Collier v. Gannon, 40 Okla. 275, 137 P. 1179; St. L. & S. R. Co. v. Shepard, 40 Okla. 589, 139 P. 833; Kelly v. State, 40 Okla. 355, 138 P. 167.

¶3 The appeal will therefore be dismissed.

¶4 All the Justices concur.