LEWIS v. LYNDE-BOWMAN-DARBY CO.

LEWIS v. LYNDE-BOWMAN-DARBY CO.
1915 OK 666
151 P. 1045
51 Okla. 271
Case Number: 5342
Decided: 09/21/1915
Supreme Court of Oklahoma

LEWIS
v.
LYNDE-BOWMAN-DARBY CO.

Syllabus

¶0 APPEAL AND ERROR--Presentation Below--Motion for New Trial. To have errors occurring at the trial of a case reviewed in the Supreme Court, a motion for a new trial must have been filed and acted on by the trial court, and exceptions saved to the refusal of the trial court to grant the new trial.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Action by Mollie Lewis against the Lynde-Bowman-Darby Company. Judgment for defendant, and plaintiff brings error. Dismissed.

This was an action brought by the plaintiff in error for the purpose of having a judgment, theretofore rendered against the plaintiff in error, set aside on the ground of fraud in procuring the judgment. After the action was commenced, one Sallie Manuel was allowed to intervene and ask to have the same judgment set aside as to her. After a jury had been impaneled, and while the evidence was being introduced, by consent of all parties, the jury was discharged, and the case submitted to the court. The court set aside the judgment as to Sallie Manuel, but refused so to do as to Mollie Lewis, and she brings the case here by petition in error and case-made. No motion for a new trial was filed in the court below, however, and the defendant in error has filed a motion to dismiss the appeal for this reason.

W. F. Seaver and Joe Johnson, for plaintiff in error.
Roach & Bradley, for defendant in error.

DEVEREUX, C.

¶1 (after stating the facts as above). It has been repeatedly held by this court that, to have errors occurring at the trial of a case reviewed by this court, a motion for a new trial must have been filed and acted on by the trial court, and exceptions saved to the judgment of the court in passing on the motion for a new trial. Martin v. Gassert, 17 Okla. 177, 87 P. 586; Meyer v. James, 29 Okla. 7, 115 P. 1016; Board of Comm'rs of Beaver County v. Langston, 41 Okla. 715, 139 P. 956. No motion for a new trial having been filed in this case, and all of the alleged errors complained of having occurred at the trial, the appeal should be dismissed.

¶2 We therefore recommend that the appeal be dismissed.

¶3 By the Court: It is so ordered.