Mo., O. & G. Ry. Co. v. Mcclellan, Case Number: 3428

• Court: Supreme Court of Oklahoma
• Writing for the Court: HAYES, C. J.
• Citation: 1913 OK 182,130 P. 916,35 Okla. 609
• Docket Number: Case Number: 3428
• Decision Date: 11 March 1913
• Parties: MISSOURI, O. & G. RY. CO. v. McCLELLAN.

1913 OK 182
130 P. 916
35 Okla. 609

MISSOURI, O. & G. RY. CO.
v.
McCLELLAN.

Case Number: 3428

Supreme Court of Oklahoma

Decided: March 11, 1913

Syllabus

¶0 1. APPEAL AND ERROR--Petition in Error-- Amendment--Assignments--Overruling Motion for New Trial. An assignment of error to the effect that the court below erred in overruling a motion for a new trial is a new and distinct assignment of error; and a petition in error in the Supreme Court cannot be amended by incorporating such assignment therein after the statutory time for perfecting an appeal has expired.

2. SAME--Assignments of Error--Motion to Strike Case from Docket. An order overruling a motion to strike a case from the trial docket will not be reviewed by this court on appeal, where such ruling of the trial court has not been assigned in the motion for a new trial, and exceptions to the ruling on the motion for a new trial saved, and the overruling of the motion assigned in the petition in error in this court.

3. PLEADING-- Petition--Objection at Trial. Where there has been a trial, and no objection has been made to the petition by demurrer or by motion, an objection to the introduction of evidence under the petition for the reason that it does not state a cause of action, or an objection to the sufficiency of the petition in this court, will be held good only when there is a total failure to allege in the petition the relief sought; and the petition will be liberally construed, if necessary, in order to sustain same.

Error from District Court, Hughes County; John Caruthers, Judge.
Action by D. W. McClellan against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

E. R. Jones and J. C. Wilhoit (Alexander New and Arthur Miller, of counsel), for plaintiff in error.

Crump & Skinner, for defendant in error.

HAYES, C. J.

¶1 Defendant in error, hereinafter called plaintiff, brought this action against plaintiff in error hereinafter called defendant in the court below to recover for injuries he alleges that he sustained by reason of negligence of the defendant while he was employed by defendant as a section foreman. A trial upon the issues formed by the pleadings resulted in a verdict and judgment in favor of plaintiff in the sum of $ 7,000, to reverse which this appeal is prosecuted.

¶2 Four assignments of error are presented for reversal. The first and second assignments present the contention that the trial court erred in overruling defendant's motion to strike the case from the trial docket; the third assignment complains of the court's overruling a motion of defendant for an order requiring plaintiff to submit to a physical examination; and the fourth assignment complains of the overruling of an objection by defendant to the introduction of any testimony by plaintiff in support of his petition, upon the ground that the petition does not state facts sufficient to constitute a cause of action.

¶3 A motion for a new trial, presented by defendant to the trial court, was overruled; but this action of the court was not assigned in the petition in error filed here. After the statutory time for taking an appeal had expired defendant made application to this court for leave to file an amended petition in error, by which it would assign as error the action of the court in overruling the motion for a new trial; but its application cannot be granted, for such an assignment of error is a new and distinct assignment, setting up a new cause for the reversal of the judgment of the lower court and it cannot be made after the statutory time for perfecting the appeal has expired. Smith v. Alva State Bank, post, 130 P. 916; Maggart v. Wakefield et al., 31 Okla. 751, 123 P. 1042; Haynes v. Smith, 29 Okla. 703, 119 P. 246.

¶4 No action of the trial court, therefore, can be reviewed in this proceeding which it is required shall be first presented to the trial court by a motion for a new trial. The first inquiry, therefore, this proceeding presents to the court for consideration is: Was the overruling of defendant's motion to strike the cause from the docket a ground for a new trial, and the presentation of such error to the trial court by motion for a new trial necessary in order that it may be reviewed in this court? It has been held in numerous cases that errors of law occurring at the trial cannot be reviewed in this court on appeal, unless such errors have been presented to the trial court by motion for a new trial, and exceptions saved to the overruling of the motion for a new trial, and the act of the court in overruling the motion for a new trial assigned as error in the petition in error in this court; but what acts of the court preceding the trial may be assigned as grounds for a new trial, and must be presented in a motion for a new trial before they can be reviewed on appeal, has not been clearly determined in any case.

¶5 In Powell et al. v. Nichols et al., 26 Okla. 734, 110 P. 762, it was sought to set aside a levy of execution, and it was held...