Kingman v. Pixley

• Decision Date: 30 July 1898
• Citation: 54 P. 494,7 Okla. 351,1898 OK 65
• Parties: KINGMAN et al. v. PIXLEY.
• Court: Oklahoma Supreme Court

54 P. 494

7 Okla. 351, 1898 OK 65

KINGMAN et al. v. PIXLEY.

Supreme Court of Oklahoma

July 30, 1898

Syllabus by the Court.

1. When a demurrer is sustained to a petition, and plaintiff, after obtaining leave of court, files an amended petition, and issues are joined thereon and a trial had, the plaintiff, by filing his amended pleading, waives any error committed by the trial court in sustaining such demurer.

2. Motions, affidavits for continuance, and evidence introduced upon the trial of a cause, cannot be considered on appeal by the supreme court, unless made a part of the record by a bill of exceptions or by a case-made.

Appeal from probate court, Pawnee county; before Justice Edward L Lemert.

Action by Kingman & Co., against Daniel Pixley, Judgment for defendant, and plaintiff bring error. Affirmed.

James P. Neal, for plaintiffs in error.

Eagleton & Morphis, for defendant in error.

BURWELL J.

The plaintiffs in error, Kingman & Co., on the ___ day of November, 1894, commenced an action against the defendant Daniel Pixley, in the probate court of Pawnee county, on a foreign judgment for $769.15. issues were joined, and a trial had, which resulted in a judgment for the defendant. Plaintiffs appeal by transcript to this court, paying a reversal of the judgment below, and assign error as follows:

First that the court erred in sustaining defendant's demurrer to plaintiff's original petition. The record discloses that when defendant's demurrer to plaintiffs' original petition was sustained the plaintiffs obtained leave to amend, and filed an amended petition, which embraced all of the matters and things alleged in the original petition. Issues were joined by the defendant, and a trial had; and, even if the trial court committed error in sustaining defendant's demurrer to plaintiffs' original pleading, the plaintiffs waived such error when they filed their amended petition. Young v. Martin, 8Wall, 354; Rosa v. Railway Co., 18 Kan. 124.

Appellants allege, second, that the court erred in overruling the motion of plaintiffs in error to require defendant to make his answer more definite and certain; third, in overruling the motion of the plaintiffs in error to require defendant to elect which of his several inconsistent defenses he relied upon; and, fourth, in overruling the motion and application of plaintiffs in error for a continuance. This record comes to us on a transcript. Therefore the last three citations of error cannot be considered. The errors, if any were committed, should have been saved by a bill of exceptions, or presented by a casemade. Neither of the motions not the application for a continuance are a part of the record. They...