Cooper v. Boyce

PER CURIAM. This is an appeal from a judgment of the district court of Blaine county rendered on the 4th day of November, 1927, in an action wherein the plaintiffs in error were defendants. Parties are referred to as they appeared in the trial court. The defendants demurred to ifiaintiff’s petition, which demurrer was by the trial court overruled on the 24th day of January, 1927. Thereafter the defendants filed their answer, the cause was tried to the trial court without the intervention of a jury, and judgment rendered for the plaintiff, from which judgment the defendants appeal. No motion for new trial was filed in the trial court. The first and second assignments are based upon the action of the trial court in its ruling upon the motion to make plaintiff's petition more definite and certain and to quash the summons in the action, and the fourth assignment of error in the petition in error is based upon alleged errors occurring at the *222 trial of the cause. The appeal in this cause is hy transcript, but no bill of exceptions is incorporated therein. Assignments of error 1, 2, and 4 cannot be reviewed in this court upon transcript of the record, but must be presented by bill of exceptions or case-made. In re Cutchall Estate, 131 Okla. 226, 268 Pac. 269; Holloway v. O’Dell, 131 Okla. 38, 267 Pac. 620; Williams v. Kelly, 71 Okla. 166, 176 Pac. 204. The third assignment of error is that the court erred in overruling- the demurrer of the defendants to plaintiff’s petition. This alleged error may be reviewed upon transcript, but must be appealed to this court within six months from the date of the order overruling the demurrer. The- order overruling the demurrer was made on the 24th day of January, 1927, and the appeal lodged in this court on May 3, 1928, which was not within the six months allowed by law in which to appeal. This court is therefore without jurisdiction to review the same. McGrath v. Rorem, 123 Okla. 163, 252 Pac. 418; Liberty Life Insurance Co. v. Green, 133 Okla. 58, 270 Pac. 1111; Aultman & Taylor Machinery Co. v. Fuss, 86 Okla. 168, 207 Pac. 308. Under the first, second, and fourth assignments of error there is nothing presented to this court for review, and the appealmot having been filed within six months from the date the demurrer was overru’ed, this court is without jurisdiction to review such order. The appeal is dismissed. Note.—“Appeal and Error,” 3 C. J. §1035, p. 1043. n. 29: 4 C. J. §1730. p. 124, n. 48.