Commercial National Bank v. Trumbly

Opinion by MATHEWS, C. This action was instituted against the administrator of the maker of a promissory note for the collection of said note. The cause was tried to the court, and judgment was rendered in favor of defendant, and the case is here upon petition in error. It appears from the record that no motion for a new trial was filed in the trial court. The entire assignment •of errors relate to errors alleged to have been committed during the trial, with the exception of the first assignment of error in overruling plaintiff’s demurrer to defendant’s answer. Plaintiff in error expressly .waives his first assignment of error. We have also examined defendant’s answer, and find no error in overruling the demurrer to same. A long- and unbroken line of decisions from this court holds that error occurring during the trial will not be entertained here, unless a motion for a new trial," founded upon and including such alleged errors; has first been presented to the trial court, overruled by him, this ruling excepted to, and such ruling afterwards assigned as error in the Supreme court. Kee v. Park et al., 32 Okla. 302, 122 Pac. 712; St. Louis & S. F. R. Co. v. Leake, 34 Okla. 77, 123 Pac. 1125; St. Louis, I. M. & S. Ry. Co. v. Wins-ley, 39 Okla. 374, 135 Pac. 19; O’Neil v. James, 40 Okla. 661, 140 Pac. 141; Avery v. Hays, 44 Okla. 71, 144 Pac. 624; Carlisle v. Dawson, 52 Okla. 115, 152 Pac. 825. We recommend that the judgment be affirmed. By the Court: It is so ordered.