Brown & Bridgeman v. Western Casket Co.

• Decision Date: 14 November 1911
• Citation: 120 P. 1001,30 Okla. 144,1911 OK 359
• Parties: BROWN & BRIDGEMAN v. WESTERN CASKET CO.
• Court: Oklahoma Supreme Court

120 P. 1001

30 Okla. 144, 1911 OK 359

BROWN & BRIDGEMAN v. WESTERN CASKET CO.

Supreme Court of Oklahoma

November 14, 1911

Syllabus by the Court.

Errors occurring during the trial of a cause will not be reviewed in this court unless first presented to the trial court, by a motion for a new trial, and an opportunity there given to correct the same.

In a case where both parties introduced evidence and a motion to direct a verdict was interposed and sustained, in order that alleged errors occurring at the trial may be reviewed in this court it is indispensably necessary that the same be presented to the trial court by a motion for a new trial, and where no such motion has been filed this court will not review the alleged errors.

Where issues of fact are presented by the pleadings and supported by evidence and the facts are disputed, or the credibility of witnesses is drawn in question, or a material fact is left in doubt, or there are inferences to be drawn from facts proven the case, under proper instruction, should be submitted to the jury, and it is reversible error in such a case to sustain a motion to direct a verdict.

Commissioners' Opinion, Division No. 1. Error from District Court, Carter county; Stilwell H. Russell, Judge.

Action by the Western Casket Company against Brown & Bridgeman to recover $58.85, alleged to be due on open account. Judgment for plaintiff. Defendant brings error. Reversed and remanded.

Apple & Franklin and Sigler & Howard, for plaintiff in error.

Ledbetter & Bledsoe, for defendant in error.

ROBERTSON C.

We are met at the threshold of this case with a motion to dismiss the appeal, interposed by the defendant in error, the grounds being as follows:

"(1) That this court is without jurisdiction to hear and decide this case for the reason that judgment was rendered in the district court of Carter county, Okl., in favor of the plaintiff (defendant in error) on the 27th day of May 1909, and the case-made was not prepared and served on plaintiff (defendant in error) within three days from the date of said judgment, and no order was made within said time extending the time in which defendant (plaintiff in error) should prepare and serve a case-made for appeal to the Supreme Court of Oklahoma.

"(2) The motion for a new trial, filed on May 28, 1909, and which was overruled July 1, 1909, did not operate to extend the time in which the defendant (plaintiff in error) could prepare and serve a case-made for the reason that the trial court at the conclusion of the testimony of plaintiff and defendant sustained a demurrer to the evidence of defendant (plaintiff in error) and upon motion of plaintiff (defendant in error) instructed the jury to return a verdict for the plaintiff (defendant in error).

"(3) A motion for a new trial was not necessary for the reason that the ruling of the court presented only questions of law and there were no facts to be reviewed which required a motion for a new trial."

The motion must be overruled. The record plainly shows, and it is admitted by counsel for the defendant in error in the above motion, that at the trial of the cause in the court below, witnesses were examined by both plaintiff and defendant, and a jury was impaneled and heard the evidence, and at the close of defendant's evidence, plaintiff offered, what its counsel is pleased to call, a demurrer to the evidence (Record, p. 39), which was sustained by the court. This so-called demurrer was nothing more or less than a request for a peremptory instruction to direct a verdict in favor of plaintiff and against defendant, and was not a demurrer to the evidence in the sense that the term is used by counsel for defendant in error. The motion was sustained and the jury was instructed by the trial court to return a verdict for the plaintiff, and such a verdict was returned by the jury, and a judgment rendered in accordance therewith.

It is a principle so well settled in this state that citation of authority is almost unnecessary that errors occurring on the trial of the cause will not be reviewed in this court unless first presented to the trial court, and an opportunity there given to correct the same, by a motion for new trial. Kuhlman v. Williams, 1 Okl. 136, 28 P. 867; De Berry v. Smith, 2 Okl. 1, 35 P. 578; Carson v Butt, 4 Okl. 133, 46 P. 596; Hardwick v. Atkinson, 8 Okl. 608, 58 P. 747; Beperstein v. Territory, 8 Okl. 467, 58 P. 641; Boyd v. Bryan, 11 Okl. 56, 65 P. 940; Osborn & Co. v. Case, 11 Okl. 479, 69 P. 263; Menten v. Shuttee, 11 Okl. 381, 67 P. 478; S.W. Cottonseed Oil Co. v. Bank, 12 Okl. 168, 70 P. 205; Glaser v. Glaser, 13 Okl. 389, 74 P. 944. A motion for a new trial in the case at bar was absolutely necessary in order to secure either in the trial court or this court a review of the errors occurring at the trial, and they could not, by any other means, be reviewed in this court. The Kansas cases which counsel for defendant in error relies upon to sustain his motion are not in point. In those cases, especially in the case of Wagoner v. A., T. & S. F. Ry. Co., 73 Kan. 283, 85 P. 299, where a demurrer to plaintiff's evidence had been sustained, the Kansas court held that in such case no motion for new trial was necessary. Even if the case at bar was parallel to that case, which it is not, we would not be disposed to...