Bice v. Myers

• Decision Date: 13 October 1914
• Docket Number: 6683.
• Citation: 145 P. 1150,45 Okla. 507,1914 OK 464
• Parties: BICE ET AL. v. MYERS ET AL.
• Court: Oklahoma Supreme Court

145 P. 1150

45 Okla. 507, 1914 OK 464

BICE ET AL. v. MYERS ET AL.

No. 6683.

Supreme Court of Oklahoma

October 13, 1914

Application for Rehearing Stricken from the Files February 2, 1915.

Syllabus by the Court.

Where plaintiff in error fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred in the progress of the trial in the lower court, and the appeal will be dismissed.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Action between Jefferson L. Bice and others and James H. Myers and others. From a judgment in favor of the latter, the former bring error. Dismissed.

W. C Henderson, of Lawton, for plaintiffs in error.

J. A Diffendaffer and Stevens & Myers, all of Lawton, for defendants in error.

LOOFBOURROW J.

Defendants in error have filed a motion to dismiss the appeal herein for the following reasons:

"(1) That no cause is presented by the petition in error and record thereto attached, which is entitled to be reviewed on appeal; (2) that the first assignment of error cannot be considered in the state of the record and petition in error, for the reason that the plaintiff in error has not assigned the overruling of the motion for new trial as a ground of error; (3) that the second assignment of error presents no question for review under the state of the record and petition in error, for the reason that the overruling of the motion for new trial of plaintiff in error is not assigned as error."

The petition in error sets out the following assignments of error on which plaintiff in error relies for a reversal:

"The trial court erred in overruling and refusing the request and demand for a jury and in denying to the plaintiffs in error a trial by jury in this cause, which ruling of the court was excepted to by the plaintiffs in error and exception allowed, because this cause presented an issue of fact as shown by the pleadings and evidence produced and plaintiffs in error were entitled under the Constitution and laws of this state to have such disputed questions tried by a jury upon demand being made for a jury trial.

(2) The trial court erred in rendering judgment for the defendants because the great preponderance of the testimony showed that the plaintiffs executed the instrument under which defendants claimed title to the land in controversy believing the same to be a mortgage to secure a loan of $200, which belief was induced by the false

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