O'Neil v. James
| Decision Date | 14 April 1914 |
| Docket Number | Case Number: 5172 |
| Citation | 40 Okla. 661,140 P. 141,1914 OK 190 |
| Parties | O'NEIL et al. v. JAMES. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--New Trial--Assignments of Error. Where the plaintiff in error fails to assign as error the overruling of his motion for a new trial, the Supreme Court has no power to review errors alleged to have occurred during the progress of the trial.
2. SAME-- Preliminary Proceedings. Errors of law occurring during the preliminary proceedings before trial, such as rulings relating to process, service, motions, or demurrers, should be specially assigned.
3. SAME--Demurrer to the Petition. A ruling of the court upon a demurrer to the petition may be presented by a transcript, without bill of exceptions or case-made, provided the ruling upon the demurrer is one of the assignments of error in the petition in error.
4. SAME--Overruling of Demurrer. Error of the trial court in overruling a demurrer to the petition is not presented for review by an assignment of error in the petition in error which reads: "(4) The judgment of the court in all these matters is contrary to law and against all the competent evidence which was introduced and heard upon the trial."
Error from District Court, Tulsa County; L. M. Poe, Judge.
Action by Simeal James, a minor, by Serena James, his guardian, against George K. O'Neil and the Okla. Oil Company. Judgment for plaintiff, and defendants bring error. Dismissed.
Sherman, Veasey & O'Meara, for plaintiffs in error
Carr & Field and Thompson & Patterson, for defendant in error
¶1 This cause was submitted on a motion to dismiss, filed by the defendant in error, upon the ground that the plaintiffs in error did not assign as error the action of the trial court in overruling their motion for a new trial, and, inasmuch as all errors assigned in the petition in error are such as should have been presented to the court below for re-examination, by a motion for a new trial, the Supreme Court is without authority to review such errors. The motion to dismiss seems to be well taken. Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Martin v. Gassert, 17 Okla. 177, 87 P. 586; Southwestern Cotton Seed Oil Co. v. Bank, 12 Okla. 168, 70 P. 205; Kimbriel v. Montgomery, 28 Okla. 743, 115 P. 1013; Meyer v. James, 29 Okla. 7, 115 P. 1016; Stinchcomb et al. v. Myers, 28 Okla. 597, 115 P. 602; Haynes et al. v. Smith, 29 Okla. 703, 119 P. 246; Butler v. Oklahoma State Bank, 36 Okla. 611, 129 P. 750.
¶2 Counsel for plaintiffs in error concede the rule to be as above stated, but contend that under their fourth assignment of error, which is, "The judgment of the court in all these matters is contrary to law and against all the competent evidence which was introduced and heard upon the trial," the question of whether the petition states facts sufficient to constitute a cause of action may be reviewed under the present state of the record. This contention is without merit for at least two reasons: (1) The fourth assignment of error merely refers to the assignments which precede it in the petition in error, which are all errors occurring at the trial, and avers that in the particulars therein stated the judgment is contrary to law and against all the competent evidence. (2) If the fourth assignment could be construed to mean that the judgment of the court is contrary to the law and the evidence, it would merely state one of the statutory grounds for a new trial, which it would be necessary to embrace in a motion for a new trial and present to the court below for re-examination before it would be reviewable in the Supreme Court.
¶3 There is no assignment of error which in terms attempts to attack the sufficiency of the petition. The rule is well established in this jurisdiction that errors of law occurring during the preliminary proceedings before trial, such as rulings relating to process, service, motions, or demurrers, should be specially assigned. Boyd v. Bryan, 11 Okla. 56, 65 P. 940; Menten v. Shuttee, 11 Okla. 381, 67 P. 478. In the latter case it was said:
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