Witherspoon v. Smith

This is an action brought by Lizzie Smith against Frankle Hickman, F.A. Handlin, as trustee for the First National Bank of Ft. Smith, Ark., and J.G. Witherspoon, upon a note secured by a real estate mortgage.

The defendant bank filed its answer and cross-petition setting up notes and a mortgage upon the same real estate. The defendant Witherspoon filed his answer, alleging that he was a purchaser of the real estate, and denied owing a portion of the indebtedness claimed by the bank. The judgment was for the plaintiff in the amount prayed for, and for the defendant Handlin as trustee of the First National Bank of Ft. Smith, for the full amount of the indebtedness claimed by it, from which judgment the defendant Witherspoon appeals.

The petition in error does not assign the overruling of the motion for new trial as error. This court has repeatedly held that errors occurring during the trial cannot be considered by this court, unless a motion for new trial has been made by the complaining party and acted upon by the trial court and its ruling assigned as error in the Supreme Court. Kee v. Park et al., 32 Okla. 302, 122 P. 712; Stinch-Comb v. Myers,28 Okla. 597, 115 P. 602; St. L. S. F. Ry. Co. v. Leake et al.,34 Okla. 77, 123 P. 1125; Nidiffer v. Nidiffer, 44 Okla. 218,144 P. 350; Maddox v. Barrett, 44 Okla. 101, 143 P. 673; Avery et al. v. Hayes, 44 Okla. 71 144 P. 624.

There being nothing presented by the record for this court to review, the cause is affirmed.

By the Court: It is so ordered.