Bice v. Myers
Decision Date | 13 October 1914 |
Docket Number | Case Number: 6683 |
Citation | 45 Okla. 507,1914 OK 464,145 P. 1150 |
Parties | BICE et al. v. MYERS et al. |
Court | Oklahoma Supreme Court |
¶0 APPEAL AND ERROR--Assignments of Error--New Trial--Denial. 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.
W. C. Henderson, for plaintiffs in error
J. A. Diffendaffer and Stevens & Myers, for defendants in error
¶1 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."
¶2 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 exceptions 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.
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...which this court will review. Avery v. Hays, 44 Okla. 71, 144 P. 624; Wilson v. Eulberg, 51 Okla. 316, 151 P. 1067; Bice et al. v. Myers et al., 45 Okla. 507, 145 P. 1150. The foregoing disposes of the interpleader's petition in error; and we will now proceed to consider the defendant's con......
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...during the progress of the trial in the lower court." See McDonald et al. v. Wilson, 29 Okla. 309, 116 P. 920; Bice et al. v. Myers et al., 45 Okla. 507, 145 P. 1150; Cox v. Lavine, 29 Okla. 312, 116 P. 920. We therefore recommend that the appeal herein be dismissed. ¶2 By the Court: It is ......
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