O'Neil v. James

KANE, J.

This cause was submitted on a motion to dismiss, filed by the defendant in error, upon the ground that the plaintiffs in error did not assign as error the action of the trial court in overruling their motion for a new trial, and, inasmuch as all errors assigned in the petition in error are such as should have been presented to the court below for re-examination, by a motion for a new trial, the Supreme Court is without authority to review such errors. The motion to dismiss seeing to be well taken.

Whiteacre v. Nichols, 17 Okla. 387 , 87 Pac. 865 ;

Martin v. Gassert, 17 Okla. 177 , 87 Pac. 586 ;

Southwestern Cotton Seed Oil Co. v. Bank, 12 Okla. 168 , 70 Pac. 205 ;

Kimbriel v. Montgomery, 28 Okla. 743 , 115 Pac. 1013 ;

Meyer v. James, 29 Okla. 7 , 115 Pac. 1016 ;

Stinchcomb et al. v. Myers, 28 Okla. 597 , 115 Pac. 602 ;

Haynes et al. v. Smith, 29 Okla. 703 , 119 Pac. 246 ;

Butler v. Oklahoma State Bank, 36 Okla. 611 , 129 Pac. 750 .

Counsel for plaintiffs in error concede the rule to be as above stated, but contend that under their fourth assignment of error, which is, “The judgment of the court in all these matters is contrary to law and against all the competent evidence which was introduced and heard upon the trial,” the question of whether the petition states facts sufficient to constitute a cause of action may be reviewed under the present state of the record. This conten *663 tion is without merit for at least two reasons: (1) The fourth assignment of error merely refers to the assignments which precede it in the petition in error, which are all errors occurring at the trial, and avers that in the particulars therein stated the judgment is contrary to law and against all the competent evidence. (2) If the fourth assignment could be construed to mean that the judgment of the court is contrary to the law and the evidence, it would merely state one of the statutory grounds for a new trial, which it would be necessary to embrace in a motion for a new trial and present to the court below for re-examination before it would be reviewable in the Supreme Court.

There is no assignment of error which in terms attempts to attack the sufficiency of the petition. The rule is well established in this jurisdiction that errors of law occurring during the preliminary proceedings before trial, such as rulings relating to process, service, motions, or demurrers, should be specially assigned.

Boyd v. Bryan, 11 Okla. 56 , 65 Pac. 940 ;

Mentor v. Shuttee, 11 Okla. 381 , 67 Pac. 478 . In the latter case it was said:

“While the ruling upon the demurrer to the amended petition is the only question presented by the transcript which under our practice is proper for consideration, that ruling is not assigned as error, and is not reviewable. This court will not review rulings and orders of the trial court which are not complained of and embraced in the petition in error.”

Discussing the same question in a later case, decided since statehood, Haynes v. Smith, supra, Mr. Justice Williams, who delivered the opinion of the court, says:

“The record, however, is certified as a transcript, and, if any assignment of error in the petition in error raises any question that could be brought up on transcript, the appeal should not be dismissed. The following are the assignments of error in the petition in error: (1) Verdict-and judgment contrary to-law. (2) Judgment and verdict not sustained by the weight of evidence. (3) Error in the instructions given the jury. (4) Irregularities in the proceedings at said trial, by which the defendants were prevented from having a fair trial. (5) Errors of law occurring at the trial, and excepted to by plaintiff in error. The assignments of error in the petition in error raise questions that it is essential to bring up the evidence and rulings of the trial court thereon, either by case-made or bill of exceptions, in *664 order to determine whether there was error. * * * The overruling or sustaining of a demurrer to a pleading is not included in ‘errors of law occurring at the trial.’ * * * It follows that no - error is assigned in the petition in error that may be reviewed on a transcript.”

Subsequent to the filing of the motion to dismiss, counsel for plaintiff in error filed a motion asking leave to amend the petition in error by adding assignments of error to the effect that the court erred in overruling their motion for a new trial, and in overruling their demurrer to the petition. As the time for appeal from the action of the court in the above matters has expired, the motion asking leave to amend the petition in error must be overruled. It has often been held by this court that such assignments of error constitute new and distinct ássignments, setting up a new cause for the reversal of the judgment of the lower court, and amendments to- the petition in error embracing such assignments cannot be made after the statutory time for perfecting an appeal has expired.

Smith v. Alva State Bank, 35 Okla. 638 , 130 Pac. 916 ;

M., O. & G. Ry. Co. v. McClellan, 35 Okla. 609 , 130 Pac. 916 .

For the reason stated, the appeal must be dismissed.

All the Justices concur.