Vandenburg v. Winne

Supreme Court of Oklahoma

Vandenburg v. Winne

1915 OK 604, 155 P. 245, 55 Okla. 679, 1916 Okla. LEXIS 214

CourtSupreme Court of Oklahoma

DecidedAugust 10, 1915

Docket5076

StatusPublished

Cited by5 cases

This text of 1915 OK 604 (Vandenburg v. Winne) 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

Vandenburg v. Winne, 1915 OK 604, 155 P. 245, 55 Okla. 679, 1916 Okla. LEXIS 214 (Okla. 1915).

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Opinion

Opinion by

BROWN, C.

The defendant in error commenced this action October 19, 1910, against the plaintiff in error by filing his petition in the district court of Ouster county to recover the sum of $2,285.45, which it is alleged the plaintiff in error owed the defendant in error for building material.

On the 11th day of April, 1911, upon agreement of the parties, the cause was referred to a referee to take testimony, make findings of fact and conclusions of law in the cause, and report same to the district court. Thereafter, pursuant to the order of the court, the referee took testimony, made findings of fact and conclusions of law, *680 and filed the same in the district court October 25, Í912. On the last-mentioned date the record discloses' that the plaintiff in error filed a motion for a new trial.

On November 7, 1912, the report of the referee came up for hearing before the court, and the same was confirmed, and a judgment rendered against the plaintiff in error, as recommended by the said referee. However, the record nowhere discloses that the court ever acted upon the motion for a new trial.

The plaintiff in error only complains here of errors that occurred during the trial of the cause, and this court has repeatedly held in a long line of well-considered cases that errors occurring during the trial cannot be considered by the court unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its rulings excepted to and afterwards assigned for error in the Supreme Court. Kee v. Park et al., 32 Okla. 302, 122 Pac. 712; Stinchcomb et al. v. Myers, 28 Okla. 597, 115 Pac. 602, and cases cited therein; Greer v. Moorman et al., 40 Okla. 30, 135 Pac. 736; St. L. & S. F. R. Co. v. Leake et al., 34 Okla. 77, 123 Pac. 1125.

The appeal should therefore be dismissed.

By the Court: It is so ordered.

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Opinion by

BROWN, C.

The defendant in error commenced this action October 19, 1910, against the plaintiff in error by filing his petition in the district court of Ouster county to recover the sum of $2,285.45, which it is alleged the plaintiff in error owed the defendant in error for building material.

On the 11th day of April, 1911, upon agreement of the parties, the cause was referred to a referee to take testimony, make findings of fact and conclusions of law in the cause, and report same to the district court. Thereafter, pursuant to the order of the court, the referee took testimony, made findings of fact and conclusions of law, *680 and filed the same in the district court October 25, Í912. On the last-mentioned date the record discloses' that the plaintiff in error filed a motion for a new trial.

On November 7, 1912, the report of the referee came up for hearing before the court, and the same was confirmed, and a judgment rendered against the plaintiff in error, as recommended by the said referee. However, the record nowhere discloses that the court ever acted upon the motion for a new trial.

The plaintiff in error only complains here of errors that occurred during the trial of the cause, and this court has repeatedly held in a long line of well-considered cases that errors occurring during the trial cannot be considered by the court unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its rulings excepted to and afterwards assigned for error in the Supreme Court. Kee v. Park et al., 32 Okla. 302, 122 Pac. 712; Stinchcomb et al. v. Myers, 28 Okla. 597, 115 Pac. 602, and cases cited therein; Greer v. Moorman et al., 40 Okla. 30, 135 Pac. 736; St. L. & S. F. R. Co. v. Leake et al., 34 Okla. 77, 123 Pac. 1125.

The appeal should therefore be dismissed.

By the Court: It is so ordered.

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Bluebook (online)

1915 OK 604, 155 P. 245, 55 Okla. 679, 1916 Okla. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vandenburg-v-winne-okla-1915.

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