(Syllabus.)
Appeal and Error — Reserving Error in Trial Court — Objection to Sufficiency of Evidence.
Where a party acquiesces in the submission of the issues to the jury without either demurring to the plaintiff's evidence, or asking an instructed verdict, or otherwise attacking the sufficiency of the evidence, he cannot in this court successfully claim the evidence does not support the verdict, even though assigned in motion for a new trial as grounds therefor. Newton v. Okmulgee Grocery Co., 88 Okla. 184, 212 P. 423.
Commissioners' Opinion, Division No. 2.
HERR. C.
This is an action originally brought in the district court of Ottawa county by Homer Wells against Ed Crow to recover a real estate commission. Trial was to a jury, resulting in a verdict and judgment thereon in favor of plaintiff. Defendant appeals.
The first assignment of error is that the evidence is insufficient to sustain the verdict and judgment. Defendant neither demurred to nor moved for a directed verdict. He, therefore, cannot, in this court, attack the sufficiency of the evidence. Smith v. Ferguson, 96 Okla. 150, 221 P. 447; Shackelford v. Goodnight, 94 Okla. 297, 222 P. 514.
Defendant sought to raise this question in the trial court by motion for new trial. This question cannot be raised in this manner. Newton v. Okmulgee Wholesale Grocery Go., 88 Okla. 184, 212 P. 423; Beatty v. Moore, 133 Okla. 105, 239 P. 570.
Exceptions have been taken by defendant to several of the instructions given by the court. It is, however, conceded by him that these instructions correctly state the law, and they are only assailed on the ground that plaintiff, under the evidence, was not entitled to go to the jury under any theory of his case. The instructions correctly state the law on the theory upon which plaintiff's case was cast, and defendant cannot, under the law, raise the question of the sufficiency of the evidence in this manner.
Under the record here presented, nothing is before this court for review. Judgment should be affirmed.
BENNETT, DIFFENDAFFER, EAGLETON, and FOSTER, Commissioners, concur.
By the Court: It so ordered.
Note. — See "Appeal and Error," 3 C. J. § 638, p. 745, n. 14; § 746, p. 839, n. 40.