Newton v. Okmulgee Grocery Co.

1923 OK 54, 212 P. 416, 88 Okla. 184, 1923 Okla. LEXIS 584

Opinion

•COCHRAN, J.

This action was filed by defendant in error against the plaintiffs in error to recover on open account. The case was submitted to the jury, and a judgment returned for the plaintiff. The only assignment of error presented in the brief of the plaintiffs in error is:

“The verdict is not sustained by sufficient evidence and is contrary to the evidence.

No demurrer was filed to plaintiff’s evidence, no request was made for an instructed verdict, and defendants acquiesced in the submission of the issues to the jury. This court has held that under such circumstances, and where the sufficiency of the evidence is not attacked in any manner until the motion for a new trial is filed, the question whether there is any evidence reasonably sufficient to support defense is not presented for review by defendants' motion for a new trial and will not be considered by this court Norman v. Lambert, 64 Okla. 238, 167 Pac. 213; Constantin Refining Co. v. Thwing Instrument Co., 72 Oklahoma, 178 Pac. 111; Holland Banking Co. v. Dicks, 67 Okla. 228, 170 Pac. 253.

The judgment of the trial court is affirmed.

JOHNSON, Y. C. J., and KANE, NICHOLSON, KENNAMER, and HARRISON, JJ., concur.