Garner v. Scott

Supreme Court of Oklahoma

Garner v. Scott

1911 OK 152, 115 P. 789, 28 Okla. 646, 1911 Okla. LEXIS 172

CourtSupreme Court of Oklahoma

DecidedMay 9, 1911

Docket2237

StatusPublished

Cited by6 cases

This text of 1911 OK 152 (Garner v. Scott) 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

Garner v. Scott, 1911 OK 152, 115 P. 789, 28 Okla. 646, 1911 Okla. LEXIS 172 (Okla. 1911).

Pincite

Opinion

DDNN, J.

This case presents error from the district court of Muskogee county. A motion has been filed to dismiss the same on the ground, among others, that no motion for a new trial was filed as a predicate for the assignments of error set forth in the petition in error. To this counsel for plaintiff in error responds by insisting that the questions raised are of such character that they marr be reviewed here, without a motion fox a new trial filed and passed on by the trial court. An inspection of the petition m error, however, discloses that the grounds set forth therein upon which counsel seek to reverse the judgment of the trial court are such as were necessary to be presented by a motion for a new trial to the trial court, and that an absence of such motion will, in this court, be held to be waiver thereof. The rule is stated by the Supreme Court of the territory of Oklahoma in the case of Glaser v. Glaser, 13 Okla. 389, 74 Pac. 944, as follows:

“All matters occurring on the trial which are proper causes for a motion for new trial will be deemed to be waived, unless presented by motion for new trial, and this court will not consider them after having been once waived.”

Additional citation of authority is unnecessary, as there is no exception to this rule.

The motion to dismiss is therefore sustained.

All the Justices concur.

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DDNN, J.

This case presents error from the district court of Muskogee county. A motion has been filed to dismiss the same on the ground, among others, that no motion for a new trial was filed as a predicate for the assignments of error set forth in the petition in error. To this counsel for plaintiff in error responds by insisting that the questions raised are of such character that they marr be reviewed here, without a motion fox a new trial filed and passed on by the trial court. An inspection of the petition m error, however, discloses that the grounds set forth therein upon which counsel seek to reverse the judgment of the trial court are such as were necessary to be presented by a motion for a new trial to the trial court, and that an absence of such motion will, in this court, be held to be waiver thereof. The rule is stated by the Supreme Court of the territory of Oklahoma in the case of Glaser v. Glaser, 13 Okla. 389, 74 Pac. 944, as follows:

“All matters occurring on the trial which are proper causes for a motion for new trial will be deemed to be waived, unless presented by motion for new trial, and this court will not consider them after having been once waived.”

Additional citation of authority is unnecessary, as there is no exception to this rule.

The motion to dismiss is therefore sustained.

All the Justices concur.

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Bluebook (online)

1911 OK 152, 115 P. 789, 28 Okla. 646, 1911 Okla. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garner-v-scott-okla-1911.

Opinion

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