Ahren-Ott Mfg. Co. v. Condon

• Decision Date: 09 March 1909
• Docket Number: Case Number: 614
• Citation: 100 P. 556,1909 OK 43,23 Okla. 365
• Parties: AHREN-OTT MFG. CO. et al. v. CONDON et al.
• Court: Oklahoma Supreme Court

1909 OK 43

100 P. 556

23 Okla. 365

AHREN-OTT MFG. CO. et al. v. CONDON et al.

Case Number: 614

Supreme Court of Oklahoma

Decided: March 9, 1909

Syllabus

¶0 1. APPEAL AND ERROR--Motion for New Trial--Necessity. Errors occurring on the trial of a cause will not be reviewed in this court unless presented to the trial court on motion for new trial.

2. APPEAL AND ERROR--Case-Made or Bill of Exceptions--Necessity. Matters which are not by statute authorized to be made a part of the record except by case-made or bill of exceptions cannot be brought to this court on a certificate of the clerk, and errors assigned thereon.

Error from District Court, Muskogee County.

Action by the Ahren-Ott Manufacturing Company and others against C. H. Condon and others. Judgment for defendants, and plaintiffs bring error, and defendants move to dismiss the writ of error. Motion sustained.

Peyton & Mason, for plaintiffs in error.

John J. Moore, for defendants in error.

DUNN, J.

¶1 This cause was filed in the United States Court for the Western District of the Indian Territory sitting at Muskogee, and was pending at the time Oklahoma and Indian Territories were erected into a state. After statehood it was tried to the court without the intervention of a jury, who on hearing the evidence rendered judgment denying plaintiffs the relief prayed for. Plaintiffs announced their intention to appeal the case to the Supreme Court, whereupon time in which to prepare, serve, and have settled a case-made was given. No motion for a new trial was filed, nor was the case-made served on counsel or the defendants or either of them, nor was it signed and settled by the trial judge. There appears, however, at the close of the record presented to us, a certificate signed by the clerk of the district court showing that it contains a correct transcript of all proceedings and all journal entries, and a correct copy and transcript of all depositions on file in his office, and all evidence introduced in said cause. The petition in error and the assignments therein raise questions of alleged errors of the court on the trial. Counsel for defendants in error have lodged in this court a motion to dismiss the case, which in our judgment must be sustained.

¶2 It is a well-established principle that error occurring on the trial of a cause will not be reviewed by this court unless presented to the trial court on motion for new trial. Boyd et al. v. Bryan, 11 Okla. 56, 65, P. 940; Decker v. House, 30 Kan. 614, 1 P. 584; McNally v. Keplinger, 37 Kan. 556, 15 P. 534; 14 Ency. Pleading & Practice, p. 846. This is true even though the cause is tried to the court without a jury. 14 Ency. Pleading & Practice, p. 848; Ortman v. Giles, 9 Kan. 324. It is further well established that matters which are not by statute authorized to be made a part of the record except by case-made or bill of exceptions cannot be brought to this court on a certificate of the clerk, and errors assigned thereon. United States ex rel. v. Choctaw, Oklahoma & Gulf Railroad et al., 3 Okla. 404, 41. P. 729; City of...