Magnolia Petroleum Co. v. Cassidy ( 1935 )

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.

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.

McNEILL, C. J., and BAYLESS, WELCH, PHELPS, and GIBSON, JJ., concur.