CITY OF NEWKIRK v. DIMMERS

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JOHNSTON ABSTRACT & LOAN CO. v. SWARTS
1912 OK 44
121 P. 1077
31 Okla. 284
Case Number: 2982
Decided: 01/09/1912
Supreme Court of Oklahoma

JOHNSTON ABSTRACT & LOAN CO.
v.
SWARTS.

Syllabus

¶0 APPEAL AND ERROR--Review--Motion for New Trial. Errors occurring on the trial of a cause will not be reviewed in this court, though the cause was tried to the court without a jury, unless presented to the trial court by motion for a new trial.

Error from Rogers County Court; H. Tom Kight, Judge.

Action by the Johnston Abstract & Loan Company against J. W. Swarts. Judgment for defendant, and plaintiff brings error. Dismissed.

Ezzard & Holtzendorff, for plaintiff in error.
S. H. Glassmire, for defendant in error.

HAYES, J.

¶1 Plaintiff in error originally brought this action to recover the sum of $ 23 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.

¶2 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 P. 556; Ortman v. Giles, 9 Kan. 324.

¶3 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.

¶4 TURNER, C. J., and KANE and WILLIAMS, JJ., concur; DUNN, J., absent, and not participating.