Burch v. Gibson

PER CURIAM. This matter comes on to be heard upon the motion of the defendant in error to dismiss the appeal. The ground assigned for dismissal is: No motion for new trial was filed and overruled by the trial court. Defendant in error contends there is no error presented to this court in the absence thereof. The action was brought by Norman Y. Gibson, as plaintiff, against H. E. Burch and Lola Burch, plaintiffs in error, as defendants, to set aside a conveyance of land by H. E. Burch to his wife, Lola Burch. The action was tried on June 26, 1933, without a jury, before Honorable E. A. Summers, as district judge. At the close of the testimony offered by the plaintiff, the defendants demurred to the evidence, and this demurrer was overruled, to which ruling of the court the defendants excepted. The defendants thereupon declined to introduce evidence and informed the trial court they elected to stand on their demurrer. The court thereupon rendered judgment in favor of the plaintiff and against defendants, canceling said deed. Defendants excepted and gave notice of appeal. The court then suggested that defendants file a motion for new trial, but their attorney stated that, in his opinion, no motion for new trial was necessary. The record for appeal was thereupon made without one. It has been held repeatedly, and consistently by this court, that, in such cases, the error complained of cannot be considered unless a motion for new trial has been duly filed, presented to the court, and by the court overruled and error predicated thereon. Lowenstein v. Todd, 40 Okla. 18, 135 P. 737; Tyler v. Tyler, 44 Okla. 411, 144 P. 1023; Malleck v. Thomas, 109 Okla. 95, 234 P. 1107; Federal Refining Co. v. Fortuna Oil Co., 77 Okla. 23, 185 P. 180; and Sac & Fox Co. v. Owens, 133 Okla. 96, 97, 271 P. 240. The appeal is therefore dismissed.