APPEAL AND ERROR.—Continued.
2. Necessity for Request for Instructions. The defendant carrier held
not entitled to complain of the court's failure to define "passen-
ger," in the absence of a request for such an instruction. Shaw-
nee Traction Co. v. Wollard.
3. Necessity for Motion for New Trial. A motion for new trial is
necessary to give jurisdiction to review errors occurring at the
trial. where a final judgment has been rendered. Baugh v.
Hudson ....
4. Denial of New Trial-Exception-Necessity.
a new trial and all errors occurring at the trial for which a new
trial might have been granted are waived where the ruling on
motion for new trial is not excepted to. Starr v. Haygood............
5. Theory of Case-Change on Appeal-Garnishment. That a party
intervening in a garnishment proceeding overpleaded his case
and claimed the fund both under an assignment and also under a
deed of trust, and on appeal claimed only under the assignment,
while the adverse party's brief dealt with the deed of trust. held
not to show that intervener changed the theory of his case in the
Supreme Court, where he in fact tried the case below on the
theory presented by him on appeal. El Reno Foundry & Ma-
chine Co. v. Western Ice Co.......
6. Same-Defense-Sales. Where, in an action for the price of goods.
the sole defense was that defendant was given an option, which
he exercised, to reject the goods, he could not urge for the first
time on appeal that the goods were prematurely shipped. Che-
nault v. Mauer Mercantile Co......
PARTIES:
7. Necessary Parties-Judgment in Rem. On appeal from a judgment
in rem parties below who are conclusively shown by the record
to have no interest in the land involved are not necessary parties.
Charvoz v. New State Bank.................
8. Necessary Parties—Purchasers at Execution Sale-Proceedings to
Confirm. Purchasers at a sheriff's sale of lands under execution
are necessary parties in the Supreme Court to reverse an order
affirming the sale and ordering issuance of deed. Smith v.
Noble Bros.
9. Death of Party-Abatement of Judgment.
been dismissed because of death of plaintiff in error and the cause
has not been revived within the time allowed by Rev. Laws 1910.
sec. 5293, the judgment appealed from abates. Atchison, T. &
S. F. Ry. Co. v. Fenton....
10. Same-Dismissal-Revivor.
Where defendant in error has died
and more than a year has elapsed since the action could have
been revived, without there being any revivor under Rev. Laws
1910, secs. 5293, 5294, and no excuse for failure to revive or
consent to a revivor is shown, the appeal will be dismissed. John-
son v. Alexander..
APPEAL AND ERROR.-Continued.
REQUISITES FOR TRANSFER OF CAUSE:
11. Summons in Error-Necessity. Where summons was not served
on defendant in error or waived, the appeal should be dismissed.
School Dist. No. 24 of Rogers County v. Brown.......
RECORD AND MATTERS NOT OF RECORD:
12. Case-Made-Extension of Time-Filing of Order. Where it does
not appear that the order extending time to make and serve the
case-made was filed below, a motion to dismiss, supported by
affidavit of the clerk of court stating that such order was not
filed, will be sustained. Keen v. Hiatt..
13. Case-Made-Notice of Date of Settlement. Although the case-made
fails to show affirmatively that notice had been given of its settle-
ment upon the date the same bears, yet, if it appears from the
certificate of the judge that the case-made was presented for
settlement and signing "by the parties to said cause." and that
amendments were duly suggested, and the case-made duly cor-
rected, etc., the same will be considered. Tulsa Ice Co. v. Wilkes
14. Same-Dismissal. Where defendant in error was not served with
notice of signing, and settling of case-made, and did not waive
same, the appeal should be dismissed. School Dist. No. 34 of
Rogers County v. Brown...
Where the defendant in error had no notice of the time and
place of signing and settling the case-made, and did not waive
same, was not present or represented when the case-made was
signed and settled. and had offered no suggestion of amendments.
held such case-made is a nullity. Gordon v. Allen... . . .
16. Same-Record of Notice. Failure of the case-made to show notice
of time and place of presenting same for settling and signing, or
that defendant in error appeared or was represented at settling
and signing of same or waived the right to be there, held to re-
quire dismissal. Comanche Mercantile Co. v. Northwestern Knit-
ting Co.
17. Case-Made-Attestation. Where the trial judge's signature to the
case-made was not attested by the clerk of the court and the seal
thereof, the appeal should be dismissed. School Dist. No. 24 of
Rogers County v. Brown.....
18. Same-Certificate-Necessity.
Where the trial judge's certificate
to the case is not attached by the clerk, and the seal of the court
is not attached, the appeal will be dismissed. Walker v. Walker
19. Case-Made-Filing Below. Where the case-made was not filed in the
court below, the appeal should be dismissed. School Dist. No. 24
of Rogers County v. Brown.....
20. Record-Transcript-Sufficiency. Where the court hears evidence
and dismisses an injunction suit and the record is not certified as
a transcript, the appeal will be dismissed. Baugh v. Hudson....
APPEAL AND ERROR.-Continued.
21. Questions Presented for Review-Jurisdiction of Trial Court. Where
denial of new trial was not excepted to, held, that the county
court's jurisdiction of the subject-matter must be determined
from the pleadings alone. Starr v. Haygood..........
22. Failure of Plaintiff in Error to File Brief-Disposition of Cause.
Where plaintiff in error fails to file brief as required by Supreme
Court rule 7, the cause may be continued or the appeal dismissed,
or the judgment affirmed, in the court's discretion. Woodward
v. Bruhwilder
23. Same—Affirmance. Where plaintiff in error fails to file brief as re-
quired by the rules of the court. the judgment will be affirmed.
Akin v. Bonfils,
Simmons v. State
24. Same. Where plaintiff in error does not appear and fails to file
brief as required by Supreme Court rule 7 (38 Okla. vi, 137 Pac.
ix), and it appears that he gave a supersedeas bond, but defendant
in error appears, the judgment will be affirmed on motion of
defendant in error. Oriental Cement Plaster Co. v. Roman Nose
Gypsum Co.
25. Same.-Dismissal. Under Supreme Court rule 7 (137 Pac. ix), fail-
ure of plaintiff in error to prosecute requires a dismissal. Board
of Com'rs. of Garvin County v. Pyeatt
26. Failure of Defendant in Error to File Brief-Reversal.
defendant in error has filed no brief and the authorities cited in
the brief of plaintiff in error reasonably sustain the assignments
of error, the court may reverse the judgment without searching
for authorities to sustain it. Baird v. Stanley
Shields v. Boling
27. Moot Questions. Where, pending an appeal, the issues have become
moot and no practical relief will be afforded by a reversal, the
appeal will be dismissed. Legal Record Pub. Co. v. Miller......
28. Abstract Questions-Forcible Entry and Detainer. Where defend-
ants, in forcible entry and detainer appealed from a judgment of
the county court, on appeal from a justice's court, determining
that defendants were liable to pay double the value of the use of
the premises, and it appeared that defendants had abandoned the
premises before trial, held that the appeal should not be dismissed
as involving merely abstract questions. Hampton v. Lynch .....
APPEAL AND ERROR.—Continued.
29. Scope of Review in Equity Cases. Where in a purely equitable case.
the court failed to consider competent evidence, the Supreme Court
may weigh the evidence and render such judgment as should have
been rendered below. Johnson v. Perry
30. Sufficiency of Evidence. A judgment reasonably supported by the
evidence will be affirmed in the absence of prejudicial errors.
Charvoz v. New State Bank......
A judgment on a verdict sustained by no evidence will be
reversed. C. D. Osborne & Co. v. White
32. Same. A verdict, reasonably sustained by the evidence and approved
by the trial court, new trial having been denied, will not be dis-
turbed in the absence of error in the instructions. Marker v.
Gillam
33. Same. Where any one of several defenses pleaded is a complete
defense, a general verdict for defendant, if reasonably supported by
any evidence, will not be disturbed if such defense has been sub-
mitted on proper instructions. Farmers State Bank of Ames v.
Harp
A judgment on a verdict resting on conjecture, and not on
evidence reasonably supporting it, will be reversed. Kansas City
Southern Ry. Co. v. Henderson ....
35. Findings of Fact-Evidence. Findings by the court in a trial with-
out a jury will not be disturbed where reasonably sustained by
evidence. German-American Bank v. Hennis
36. Same. Findings on controverted questions of fact in a trial to the
court, will not be disturbed on the weight of evidence, where they
are reasonably supported by the evidence. King v. Farris ....
37. Invited Error-Admission of Evidence. Error cannot be predicated
upon the admission of evidence brought out by the complaining
party. Dudley v. Meggs ...
38. Same-Instruction. The party at whose request an erroneous in-
struction has been given cannot predicate error thereon. Pressley
v. Incorporated Town of Sallisaaw
39. Same-Damages from Injunction-Counterclaim. Where plaintiff in
injunction filed a supplemental petition praying damages for acts
out of which the injunction arose, held, that he could not object to
the consideration of defendant's counterclaim for similar damages.
Page v. Tryon ...
40. Petition Treated as Amended. A petition will not be treated as
amended to conform to plaintiff's evidence, where defendant
objected to and his evidence controverted such evidence and the
case was not submitted on the issue made by it. Matthews-Linton
Grain Co. v. Shannon
APPEAL AND ERROR.-Continued.
41. Petition Deemed Amended-Suit on Note by Bank Com'r. Where a
suit to collect note taken over by the Bank Commission is brought
in the commissioner's name, instead of in the name of the state,
and no one is prejudiced thereby, the petition will be deemed
amnded on appeal. Bailey v. Lankford...
42. Presumptions-Grant of New Trial. Where plaintiff files motion
for new trial within statutory time and supplemental motion after
expiration of statutory time, it will be presumed on appeal that
grant of new trial was based on motion which court had right to
consider. Potts v. Rubesam
43. Discretionary Rulings-Amendment to Pleadings. The trial court's
ruling on an application to amend pleadings will not be disturbed
in the absence of an abuse of discretion. Jones v. S. H. Kress &
Co.
44. Same-Motion to Make Definite and Certain. The trial court's rul-
ing on a motion to make more definite and certain will not be
disturbed in the absence of an abuse of discretion. Union Coal
Co. v. Wooley
45. Same-Granting New Trial. An order granting a new trial will not
be disturbed unless clearly based on an erroneous view of some
unmixed question of law. Cunningham v. Cromley
46. Harmless Error - Technical Irregularities. Where the record
showed that the judgment recovered by plaintiff was just and
no defense was presented, held, that the judgment should be
affirmed, regardless of technical irregularities not involving the
merits of the case. Comanche Mercantile Co. v. Northwestern
Knitting Co.
47. Harmless Error-Remarks of Judge. A remark made by the judge
relative to liability of a defendant held, to require a reversal.
where it was calculated to mislead the jury and the verdict con-
clusively showed that it was affected thereby. Pressley v. Incor-
porated Town of Sallisaw
48. Harmless Error-Allowance of Amendments. The allowance of
amendments of pleadings during trial will not be disturbed where
the rights of the complaining party have not been prejudiced
thereby. Shawnee-Tecumseh Traction Co. v. Wollard. . . . . . . . . .
49. Same-Amendment of Pleading-Refusal. Refusal to permit an
amendment to the petition under Rev. Laws 1910, Sec. 4790, held
prejudicial error, where it appeared that such refusal was due to
an erroneous finding of fact, and that permitting the amendment
would be in furtherance of justice. Murray v. Speed
50. Harmless Error-Admission of Evidence. Error cannot be based
on the admission of incompetent evidence tending to prove an ad-
mitted fact. Menten v. Richards
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