Swank v. Tallman

Dunn, J. December 15, 1909, there was filed in this court a petition in error with case-made attached in the above-entitled case, in which it is sought to have reviewed a judgment rendered against plaintiffs in error. The errors sought to be presented are those alleged to have occurred on the trial, and the petition in error avers that the court erred in overruling the motion of plaintiffs in error “for a new trial. December 19, 1909, counsel for defendant in error filed his motion to dismiss this action for the reason that it appears from the case-made that the motion for new trial was never passed on by the trial court. An inspection of the record does not disclose that any action whatsoever was taken on the said motion for new trial; and, in the absence of a showing that there was a ruling therecn of record in the court from which this appeal is taken, the motion filed herein must be sustained. This same question was before the Supreme Court of Kansas in the case of Wilson et al. v. Kestler, 34 Kan. 61, 7 Pac. 793, and on it that court held: “A motion for a new trial was filed by plaintiffs in error— defendants below — on June 23, 1884. The record does not show that this motion has ever been passed upon, or has ever been presented to the trial court for any action whatever. Plaintiffs in error have filed their petition in this court for a review and reversal of the judgment of -the trial court. All of the alleged errors complained of in the briefs are those only which occurred upon the trial. As the motion for a new trial has never been overruled, or any exception taken to the action of the court concerning this motion, the judgment of the district court must be affirmed, upon the authority of the following cases: Ferguson v. Graves, 12 Kan. 39; Nesbit v. Hines, 17 Kan. 316.” The foregoing ease is cited with approval by the Supreme * *426 Court of the territory of Oklahoma in the case of Lee v. United States, 7 Okla. 558, 54 Pac. 792. The motion of counsel for defendant in error is accordingly sustained, and the case dismissed. All the -Justices concur.