Lewis v. Leitchfield Clothing Co.

HARDY, J. This cause is presented upon motion to dismiss upon the following grounds: That the proceeding in error is based upon a transcript of the record, and there has been filed herein no case-made, nor bill of exceptions, while the assignments set forth in the petition in error are such as can be considered only where a case-made or bill of exceptions has been filed. This motion must be sustained. The assignments of error set up in the petition in error are that the court erred in overruling plaintiff in error’s motion for a new trial, and erred in giving certain instructions to the jury. The petition in error filed herein is accompanied by transcript of the record, and not by case-made or bill of exceptions, and therefore the assignments set up therein cannot be considered by this court. Glaser v. Glaser et al., 13 Okla. 389, 74 Pac. 944; Boyd v. Bryan, 11 Okla. 56, 65 Pac. 940; Ludioig v. Benedict, 33 Okla. 300, 125 Pac. 739; Jones v. Lee, 43 Okla. 257, 142 Pac. 996. The motion to dismiss is sustained, and the proceeding in error dismissed. All the Justices concur, except BROWN, J., absent and not participating.