MAGNOLIA PEETROLEUM CO. v. CASSIDY

MAGNOLIA PEETROLEUM CO. v. CASSIDY
1935 OK 943
49 P.2d 1093
174 Okla. 129
Case Number: 25735
Decided: 10/08/1935
Supreme Court of Oklahoma

MAGNOLIA PEETROLEUM CO. et al.
v.
CASSIDY

Syllabus

¶0 Appeal and Error--Review--Sufficiency of Evidence--Failure to Object by Demurrer to Evidence or Motion for Directed Verdict.
Where the sole and only allegation of the petition in error briefed by the plaintiffs in error relates to the sufficiency of the evidence and neither a demurrer to the evidence nor a motion for directed verdict was presented to the trial court challenging the sufficiency of the evidence, and such matter is called to this court's attention by a proper motion to dismiss and no response is filed to such motion, the plaintiffs in error having been directed to respond thereto by this court, the cause will be dismissed.

Appeal from District Court, Jefferson County; Eugene Rice, Judge.

Action for damages by Wm. J. Cassidy against the Magnolia Petroleum Company et al. Judgment for plaintiff, and defendants appeal. Dismissed.

Guy Green and Champion, Champion & Fischl, for plaintiffs in error.
J. B. Moore, J. L. Vertrees, and E. B. Anderson, for defendant in error.

PER CURIAM.

¶1 This involves an action by the plaintiff. William J. Cassidy, against the defendants, Magnolia Petroleum Company et al., for damages. A judgment was obtained for the plaintiff, from which the defendants prosecute an appeal. After the brief had been filed herein, defendant in error appeared and moved to dismiss the cause in this court for the reason that the only assignment of error in the petition in error argued and presented in the brief of the plaintiffs in error is the failure of the evidence to sustain the verdict and judgment of the court.

¶2 This court upon the filing of said motion under date of the 17th day of September, 1935, directed the plaintiffs in error to file a response to said motion. No response has been filed. It is the well-settled rule of this court that the verdict and judgment of the trial court cannot be attacked upon the ground of the insufficiency of the evidence to sustain such verdict and judgment unless a demurrer to the evidence has been presented to the trial court, and where the defendant goes on through the trial and presents evidence after a demurrer has been overruled, it is then necessary to move for a directed verdict after all of the evidence is in, or any error claimed by virtue of the insufficiency of the evidence is waived. Panther Oil & Gas Co. v. Brown, 170 Okla. 210, 39 P.2d 150; Local Building & Loan Ass'n v. Hudson-Houston Lbr. Co., 150 Okla. 44, 3 P.2d 156. The appeal is dismissed.