Johnston Abstract & Loan Co. v. Swarts

1912 OK 44, 121 P. 1077, 31 Okla. 284, 1912 Okla. LEXIS 49

Opinion

PIA YES, J.

Plaintiff in error originally brought this action to recover the sum of $$3 alleged by it to be the reasonable value and charge for making, compiling, and completing a certain abstract, made, compiled, and completed at the special instance and request of defendant in error. Defendant in error by his answer admits the making of the abstract, but denies that the services rendered are worth the sum plaintiff claims, and alleges that they are worth only the sum of $9.50, which amount he tenders into court. There was a trial to the court without the intervention of a jury. The court found in favor of defendant, holding that plaintiff was entitled to recover only the amount tendered by defendant into court. This appeal is to reverse that judgment.

There was no motion for a new trial. It cannot be determined whether any error assigned in the petition in error for reversal of the cause was committed by the trial court, or, if committed, whether it was prejudicial, without reviewing the evidence, or a part thereof. In other words, all the assignments complain of errors occurring at the trial; but errors occurring on the trial of a cause will not be reviewed in this court, although the cause was tried to the court without a jury, unless they -are presented to the trial court by a motion for a new trial. Ahren-Ott Mfg. Co. v. Condon et al, 23 Okla. 365, 100 Pac. 556; Ortman v. Giles, 9 Kan. 324.

It follows, therefore, that the motion to dismiss, on the ground that no alleged error is presented that can be reviewed without a motion for a new trial, and therefore no error that can be reviewed upon this record, should be, and is, sustained.

TURNER, C. J., and KANE and WIEEIAMS, JJ., concur; DUNN, J., absent, and not participating.