Wells v. McArthur

• Decision Date: 09 March 1920
• Docket Number: 10994.
• Citation: 188 P. 322,77 Okla. 279,1920 OK 96
• Parties: WELLS ET AL. v. MCARTHUR.
• Court: Oklahoma Supreme Court

188 P. 322

77 Okla. 279, 1920 OK 96

WELLS ET AL. v. MCARTHUR.

No. 10994.

Supreme Court of Oklahoma

March 9, 1920

Syllabus by the Court.

An assignment of error, so indefinite and general as not to point out the errors complained of, will not be considered.

Errors occurring during the trial cannot be considered by the Supreme Court, unless a motion for new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its ruling excepted to and afterwards assigned for error in the Supreme Court.

A motion to vacate a default judgment, and a motion for new trial, and the action of the court in overruling the same being no part of the record proper, without case-made or bill of exceptions, cannot be presented to this court by transcript.

An affidavit that the defendants were not in the military service, under section 200, article 2, Act Cong. March 8 1918 (U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, § 3078 1/4bb), was not required, where answer was filed by the defendants and no charge is made that defendants were in the military service; and a judgment rendered against defendants will not be set aside on account of failure to file such affidavit, in the absence of a showing that they were in the military service at the time the suit was filed or the judgment rendered.

Where the proceedings in error are by transcript of the record such transcript must be authenticated by the clerk of the trial court within the time fixed by statute for filing petition in error.

Error from District Court, Stephens County; Cham Jones, Judge.

Action by Joe R. McArthur against R. W. Wells and J. S. Mullen for possession of a certain tract of land in Stephens county and for rents and profits therefrom. Judgment for plaintiff and defendants bring error. Dismissed.

Womack & Brown, of Duncan, and Sam H. Butler, of Ardmore, for plaintiffs in error.

Bond & Kolb, of Duncan, for defendant in error.

KANE J.

This is an appeal by transcript. The errors assigned are:

"(1) Because the court erred in rendering judgment against these plaintiffs in error.

(2) The court erred in rendering judgment by default when there was no affidavit on file--that defendants were not in the service of the United States, according to the act of Congress on the 8th day of March, 1919."

"(3) Because the plaintiffs in error had a valid defense, and if they had been permitted to appear and defend their cause of action, no judgment would have been rendered for the plaintiffs."

Motion has been filed to dismiss, and no response has been made.

The first assignment of error is too indefinite and general to merit consideration. Jones v. Lee, 43 Okl. 257, 142 P. 996.

The second and third assignments of error could only be considered through motions to vacate judgment and for new trial. Errors occurring during the trial cannot be considered by the Supreme Court, unless a motion for new trial, founded upon and including such errors, has been made by the complaining party, and acted upon by the trial court, and its ruling excepted to and afterwards assigned for error in the Supreme Court. Avery et al. v. Hays, 44 Okl. 71, 144 P. 624; Stinchcomb et al. v. Myers, 28 Okl. 597, 115 P. 602.

The motion to vacate judgment and for new trial, and the action of the trial court in overruling the motion, being no part of the record, without case-made or bill of exceptions, cannot be presented to ...