CROW v. WELLS

CROW v. WELLS
1930 OK 194
287 P. 1042
143 Okla. 69
Case Number: 19405
Decided: 04/29/1930
Supreme Court of Oklahoma

CROW
v.
WELLS.

¶0 Where a party acquiesces in the submission of the issues to the jury without either demurring to the plaintiff's evidence or asking an instructed verdict, or otherwise attacking the sufficiency of the evidence, he cannot in this court successfully claim the evidence does not support the verdict, even though assigned in motion for a new trial as grounds therefor. Newton et al. v. Okmulgee Grocery Co., 88 Okla. 184, 212 P. 423.

O. F. Mason, of Miami, for plaintiff in error.
Frank Nesbitt, of Miami, for defendant in error.

HERR, C.

¶1 This is an action originally brought in the district court of Ottawa county by Homer Wells against Ed Crow, to recover a real estate commission. Trial was to a jury, resulting in a verdict and judgment thereon in favor of plaintiff. Defendant appeals.

¶2 The first assignment of error is that the evidence is insufficient to sustain the verdict and judgment. Defendant neither demurred nor moved for a directed verdict. He therefore cannot, in this court, attack the sufficiency of the evidence. Smith v. Ferguson, 96 Okla. 150, 221 P. 447; Shackelford v. Good-night, 94 Okla. 297, 222 P. 514.

¶3 Defendant sought to raise this question in the trial court by motion for new trial. This question cannot be raised in this manner. Newton et al. v. Okmulgee Wholesale Grocery Co., 88 Okla. 184, 212 P. 423; Beatty v. Moore, 113 Okla. 105, 239 P. 570.

¶4 Exceptions have been taken by defendant to several of the instructions given by the court. It is, however, conceded by him that these instructions correctly state the law, and they are only assailed on the ground that plaintiff, under the evidence, was not entitled to go to the jury under any theory of his case. The instructions correctly state the law on the theory upon which plaintiff's case was cast, and defendant cannot, under the law, raise the question of the sufficiency of the evidence in this manner.

¶5 Under the record here presented, nothing is before this court for review.

¶6 Judgment should be affirmed.