Maggart v. Wakefield

• Decision Date: 12 March 1912
• Citation: 123 P. 1042,31 Okla. 751,1912 OK 197
• Parties: MAGGART v. WAKEFIELD et al.
• Court: Oklahoma Supreme Court

123 P. 1042

31 Okla. 751, 1912 OK 197

MAGGART v. WAKEFIELD et al.

Supreme Court of Oklahoma

March 12, 1912

Rehearing Denied May 7, 1912.

Syllabus by the Court.

The failure to except to the overruling of a motion for a new trial constitutes a waiver of the error as to such ruling and all alleged errors of law occurring at the trial, for which a new trial would be granted.

Error from District Court, Canadian County; John J. Carney, Judge.

Action between William H. Maggart and Luella Jeannette Wakefield and Frank A. Wakefield. From the judgment, Maggart brings error. Dismissed.

Wrightsman Bush & Johnson, of Tulsa, and Louis S. Wilson, of Raton, N M., for plaintiff in error.

Eagleton & Biddison, of Pawnee, and Phelps & Cope, of El Reno, for defendants in error.

KANE J.

The record shows that no exception was taken to the order of the court overruling the motion for a new trial. Originally the only errors assigned were such as would require a motion for a new trial to review. After the cause had been pending in this court for about a year, and long after the time for taking an appeal had expired, plaintiff in error asked leave to amend his petition in error; and, upon leave being granted, the petition in error was amended by assigning as error the insufficiency of the petition to support the verdict rendered. Prior to this amendment, there was no error assigned that could be reviewed. It is well settled that the failure to except to the overruling of a motion for a new trial constitutes a waiver of the error as to such ruling and all alleged errors of law occurring at the trial, for which a new trial would be granted. Vaughn Lumber Co. v. Missouri Lumber Co., 3 Okl. 174, 41 P. 81; Alexander et al v. Oklahoma City, 22 Okl. 838, 98 P. 943.

Counsel for plaintiff in error contend that the insufficiency of the complaint to support the judgment may be raised in the Supreme Court for the first time, and in this probably they are correct; but none of the authorities they cite go to the extent of permitting that question to be raised for the first time long after the time for taking an appeal has expired that would be, in effect, allowing an appeal after the expiration of the statutory time. Bellamy v. Washita Valley Tel. Co. et al., 25 Okl. 792, 108 P. 389; Palmer-Gregory Chiropractic College v. Hart, 26 Okl 855, 110 P. 725; Haynes et al. v. Smith, 29 Okl. 703, 119 P. 246. In the latter case it...