Lowenstein v. Todd

KANE, J. This cause comes on to be heard upon the motion of the defendant in error to dismiss the appeal upon the ground: That the sustaining of a demurrer to- the evidence of plaintiff, which action of the court is assigned as error herein, is a part of the trial of the cause, and alleged error predicated thereon cannot be raised or taken advantage of, unless the matter is brought to-the attention of the trial court by a motion for new trial, thereby affording the trial court an opportunity to correct any and all errors occurring at the trial; that no motion for new trial was filed in this cause and none is shown in the case-made ; that no ground of error is assigned in the petition in error predicated upon the overruling of motion for new trial, and no such motion in fact was filed. The motion to dismiss is well taken. The rule is that: “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 a new trial be filed within the time prescribed by law.” (Stump v. Porter, 31 Okla. 157, 120 Pac. 639; Ardmore Oil & Milling Co. v. Doggett Grain Co., 32 Okla. 280, 122 Pac. 241. The motion to dismiss is -therefore sustained. All the Justices concur.