Prochnau v. Marten

This cause was dismissed by this court in a former opinion, for the reason that the final judgment had not been brought into the record. Since then the parties by agreement have been permitted to amend by bringing the judgment into the record, which is here certified as a transcript. The errors assigned are: First, that the petition filed in this case does not state a cause of action. Second, error in overruling the motion for new trial.

The second error alleged cannot be considered on transcript. None of the evidence is before the court. To have considered matters occurring at the trial the proceedings thereof must be preserved and presented here for review on bill of exceptions or case-made. Simpson v. Henderson-Sturges Piano Co.,31 Okla. 623, 122 P. 174; St. L. S. F. R. Co. v. McCollum Baker,23 Okla. 899, 101 P. 1120.

The first ground alleged as error is not sound. We have examined the petition carefully, and think it very clearly and unquestionably states a cause of action. A very close study of appellant's contentions in the brief and the one authority he cites fails to shake this conclusion. To set the petition out and discuss it would serve no good purpose, as no new or interesting question is presented.

The cause should be affirmed.

By the Court: It is so ordered.