Thompson v. Huston

KANE, C. J. This cause comes on to be heard upon the motion to dismiss, for the reason that the proceeding in error is instituted by filing in this court the petition in error, to which is attached a transcript of the record, and the errors assigned *148 are: (1) That the court erred in sustaining a demurrer to defendant’s (plaintiff in error’s) answer; and (2) that the court refused to permit the defendant to offer evidence in support of his answer. The transcript was amended under the supervision of the trial court. It shows that no demurrer to the answer was filed, that the sufficiency of the same was not questioned by objection to the introduction of any evidence, and that evidence was offered by the defendant, to which a demurrer was sustained. The transcript contains no bill of exceptions, and the other errors complained of, not being a part of the record, cannot be reviewed upon a transcript. As the record discloses the defects complained of, the motion to dismiss must be sustained. McMechan v. Christy, 3 Okla. 303, 41 Pac. 382; Menten v. Shuttee, 11 Okla. 381, 67 Pac. 478; Ahren-Ott Mfg. Co. et al. v. Condon et al., 23 Okla. 365, 100 Pac. 556. All the Justices concur.