(Syllabus.)
Appeal and Error — Right to Review — Motion for New Trial.
Error occurring during the trial cannot be considered by the Supreme Court unless a motion for a new trial founded upon and including such error has been made by the complaining party and acted upon by the trial court and its ruling excepted to and afterwards assigned for error in the Supreme Court, where the issues of the case were made up by proper and sufficient pleadings.
PER CURIAM.
The judgment of the trial court from which this appeal was taken was entered in the district court of Osage county on the 27th day of May, 1932. The trial court entered judgment upon the cross-petition of the defendants E.C. Mullendore and Charles Yarbrough against the plaintiff in the original action, M.S. House, and at the conclusion of the trial and entry of the judgment, the plaintiff in error in this cause, plaintiff below, excepted to the judgment and gave notice in open court of his intention to appeal from said decision to the Supreme Court of Oklahoma. No motion for new trial was ever filed. A motion to dismiss was filed herein July 14, 1933, in which it is stated that the only assignments of error are based upon the action of the court in the trial of the cause and that no motion for new trial was filed in the trial court calling the attention of the trial court to the alleged errors complained of.
On the 12th day of September, the court ordered the plaintiff in error to respond to the motion to dismiss in this case. No response has been filed to that motion.
Upon an examination of the authorities cited, it appears that the assignments of error set forth in the petition in error are all based upon alleged errors of the trial court occurring during the trial of the cause. Under the rule laid down in the case of Sac Fox Oil Co. v. Owen, 133 Okla. 96, 271 P. 240, and Malleck v. Thomas, 109 Okla. 95, 234 P. 1107, the appeal is dismissed.