Sac & Fox Oil Co. v. Owens

PER CURIAM. This is an appeal from the judgment of the district court of Tulsa county. The plaintiffs in error were plaintiffs below. A trial was had in the court below on the issues formed by the pleadings, and at the close of plaintiffs’ testimony, the defendant demurred to the sufficiency of the evidence to support the allegations of the petition and for judgment thereon, which demurrer was by the court sustained, and the plaintiffs’ action dismissed. From this action of the trial court, plaintiffs have appealed. The defendant has lodged in this court his motion to dismiss the appeal, setting forth various grounds therefor. We find it unnecessary to review the grounds of *97 dismissal set forth in the motion, for the reason that an examination of the record in this cause discloses no motion for new trial was filed by the plaintiffs in 'error bringing the alleged errors to the attention of the trial court. In the case of Malleck v. Thomas, 109 Okla. 95, 234 Pac. 1107, this court laid down the following rules: “The ruling on a demurrer to the evidence is a decision occurring on the trial; and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion for new trial be filed within the time prescribed by law. “Error occurring during the trial cannot be considered by the Supreme Court, unless a motion for a newt trial, founded upon and including such error, has been made by the complaining party, and acted upon by the trial court, and its ruling 'excepted to, and afterwards assigned for error in the Supreme Court, where the issues of the. case were made up by proper and sufficient pleadings.” See, also, Lowenstein v. Todd, 40 Okla. 18, 135 Pac. 737; Tyler v. Tyler, 44 Okla. 411, 144 Pac. 1023; Federal Refining Co. v. Fortuna Oil Co., 77 Okla. 23, 185 Pac. 1080. The assignments of error set forth in the petition in error filed in this court are all based upon the action of the trial court occurring at or during the trial of the cause, and cannot be reviewed by this court without having been first called to the attention of the trial court by motion for new trial. The appeal is dismissed.