Bilby v. Cathcart
| Decision Date | 14 September 1915 |
| Docket Number | 5701. |
| Citation | 151 P. 688,51 Okla. 189,1915 OK 640 |
| Parties | BILBY v. CATHCART ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Errors occurring on the trial of a cause are not reviewable in this court, unless the same were brought to the attention of the trial court by motion for new trial, and acted upon, and such motion and the ruling thereon preserved by bill of exceptions included in a transcript, or incorporated in a case-made filed with a petition in error in this court.
Record examined, and held: (1) A continuance of the proceeding for new trial was properly refused; (2) a new trial was correctly denied; and (3) the judgment is valid.
Commissioners' Opinion, Division No. 3. Error from District Court, Hughes County; John Caruthers, Judge.
Action by Nicholas V. Bilby against Orie Cathcart and others. Judgment for defendants, and plaintiff brings error. Affirmed.
Lewis C. Lawson, of Holdenville, for plaintiff in error.
Harry H. Rogers, of Tulsa, for defendants in error.
On April 18, 1912, action was commenced in the district court of Hughes county, by the plaintiff in error against the defendants in error, to quiet title to a certain tract of land. Upon the trial thereof the court sustained a demurrer to the evidence of plaintiff, specifically found from such evidence that the defendant Mattie Cathcart was the owner in fee simple of the land involved, and rendered judgment accordingly. Motion for new trial was filed within the statutory period, and overruled on January 25, 1913 whereupon the time within which to prepare and serve a case-made was extended 40 days. No such case-made was served but on May 15, 1913, plaintiff filed a petition for a new trial on the ground of newly discovered evidence. This petition was regularly set for hearing on June 24, 1913, at which time plaintiff presented his application for a continuance, for the reason that he had been unable to procure a transcript of the evidence theretofore taken upon the trial of said cause, which he averred was material and necessary to establish certain grounds of said petition. The continuance was refused, and hearing was had upon said petition, at which testimony was introduced. A new trial was refused, and the case is now here for review.
Plaintiff assigns as error: (1) Action of the court in sustaining the demurrer to his evidence upon the original trial; (2) refusal to grant a continuance of the hearing on the petition for a new trial; (3) overruling the motion for new trial upon the former hearing of the cause; (4) errors of law occurring at the hearing of the petition for new trial; and (5) that the evidence adduced at the trial proper was insufficient to sustain the judgment.
By assignments 1, 3, and 5 an attempt is made to present for consideration by this court certain alleged errors occurring on the trial of the cause on its merits, not properly the subject of review, unless it affirmatively appears by the record: (1) That the same were brought to the attention of the court below by motion for new trial and acted upon by that court (Campbell v. Lane, 31 Okl. 757, 123 P 1061; Brown & Bridgeman v. Western Casket Co., 30 Okl. 144, 120 P. 1001; Ardmore Oil & Milling Co. v Doggett Grain Co., 32 Okl. 280, 122 P. 241; Stump v. Porter, 31 Okl. 157, 120 P. 639; State v. Poor, 33 Okl. 376, 125 P. 726); and (2) that such motion and the ruling of the court thereon are preserved by a bill of exceptions included in the transcript, or incorporated in the case-made, duly filed with the petition in error in this court (Tribal Development Company v. White Bros., 28 Okl. 525, 114 P. 736; McCoy v. McCoy, 27 Okl. 371, 112 P. 1040; Jacobs v. Willie, 150 P. 709, not yet...
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