Butler v. Oklahoma State Bank of Durant

Supreme Court of Oklahoma

Butler v. Oklahoma State Bank of Durant

1913 OK 6, 129 P. 750, 36 Okla. 611, 1912 Okla. LEXIS 926

CourtSupreme Court of Oklahoma

DecidedJanuary 7, 1913

Docket2450

StatusPublished

Cited by5 cases

This text of 1913 OK 6 (Butler v. Oklahoma State Bank of Durant) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Butler v. Oklahoma State Bank of Durant, 1913 OK 6, 129 P. 750, 36 Okla. 611, 1912 Okla. LEXIS 926 (Okla. 1913).

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Opinion

Opinion by

ROBERTSON, C.

On September 1, 1910, leave was given plaintiffs in error to file an amended petition in error. The amended petition’ in error was filed August 1, 1911. On November 22, 1911, a motion was filed by defendant in error to strike tire said amended petition in error from the files, which motion was, by the court, sustained on March 5, 1912, leaving the cause standing here on the original petition in error. Counsel for defendant in error now insist that this court is without jurisdiction to inquire into or consider the questions raised by the original petition in error, for that all questions so raised require the examination and consideration of the evidence introduced at the trial, and that plaintiffs in error have waived the consideration of such errors by failing to. assign in their petition in error the overruling of their motion for a new trial. An examination of the record proves this contention to be true.

“Where appellant fails to assign in his petition in error as error the overruling of a motion.for a new trial, no question that seeks-to have reviewed errors alleged to have occurred during the progress of the trial in the court below, is properly presented to this court, and such cannot be reviewed.” (Meyer v. James, 29 Okla. 7, 115 Pac. 1016; McDonald v. Wilson, 29 Okla. 309, 116 Pac. 920; Cox v. Lavine, 29 Okla. 312, 116 Pac. 920; Burrus v. Funk, 29 Okla. 677, 119 Pac. 976.)

These authorities are decisive of the question involved. Our investigation, therefore,. is confined to the question of the sufficiency of the bill of particulars, which is in the usuajand ordinary form of a declaration on a promissory note. It was not challenged by motion or demurrer. The execution of the note is expressly admitted by the answer. The answer raises issues of fact which were heard and determined by the jury, and the consideration of which, in this court, as has been seen above, has been waived.

*613 The judgment is regular on its face, the court had jurisdiction of the subject-matter and the parties, and, perceiving no error in the record, the judgment should be affirmed.

By the Court: It is so ordered.

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Opinion by

ROBERTSON, C.

On September 1, 1910, leave was given plaintiffs in error to file an amended petition in error. The amended petition’ in error was filed August 1, 1911. On November 22, 1911, a motion was filed by defendant in error to strike tire said amended petition in error from the files, which motion was, by the court, sustained on March 5, 1912, leaving the cause standing here on the original petition in error. Counsel for defendant in error now insist that this court is without jurisdiction to inquire into or consider the questions raised by the original petition in error, for that all questions so raised require the examination and consideration of the evidence introduced at the trial, and that plaintiffs in error have waived the consideration of such errors by failing to. assign in their petition in error the overruling of their motion for a new trial. An examination of the record proves this contention to be true.

“Where appellant fails to assign in his petition in error as error the overruling of a motion.for a new trial, no question that seeks-to have reviewed errors alleged to have occurred during the progress of the trial in the court below, is properly presented to this court, and such cannot be reviewed.” (Meyer v. James, 29 Okla. 7, 115 Pac. 1016; McDonald v. Wilson, 29 Okla. 309, 116 Pac. 920; Cox v. Lavine, 29 Okla. 312, 116 Pac. 920; Burrus v. Funk, 29 Okla. 677, 119 Pac. 976.)

These authorities are decisive of the question involved. Our investigation, therefore,. is confined to the question of the sufficiency of the bill of particulars, which is in the usuajand ordinary form of a declaration on a promissory note. It was not challenged by motion or demurrer. The execution of the note is expressly admitted by the answer. The answer raises issues of fact which were heard and determined by the jury, and the consideration of which, in this court, as has been seen above, has been waived.

*613 The judgment is regular on its face, the court had jurisdiction of the subject-matter and the parties, and, perceiving no error in the record, the judgment should be affirmed.

By the Court: It is so ordered.

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1913 OK 6, 129 P. 750, 36 Okla. 611, 1912 Okla. LEXIS 926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-oklahoma-state-bank-of-durant-okla-1913.

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