Opinion
No. 12936
Opinion Filed April 15, 1924.
(Syllabus.)
Appeal and Error — Insufficieney of Evidence — Objection Below.
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.
Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Action by Miners' Citizens' Bank against L.J. Milburn and another. Judgment for plaintiff, and defendants bring error. Affirmed.
Stuart, Sharp Cruce, for plaintiffs in error.
Burns, Toney Stephens, for defendant in error.
The plaintiffs in error urge three assignments of error, but all of them challenge the sufficiency of the evidence to sustain the verdict of the jury and judgment of the court. No demurrer was filed to plaintiff's evidence, and no request was made for an instructed verdict. The defendants acquiesced in the submission of the issues to the jury, under instructions apparently satisfactory to all parties. Where the sufficiency of the evidence is not challenged until a motion for new trial is filed, the same will not be considered on appeal. Norman v. Lambert, 64 Okla. 238, 167 P. 213; Constantin Refining Co. v. Thwing Instrument Company, 72 Oklahoma, 178 P. 111; Holland Banking Company v. Dicks, 67 Okla. 228, 170 P. 253; Newton v. Okmulgee Grocery Company, 88 Okla. 184, 212 P. 423.
The judgment of the trial court is affirmed.
JOHNSON, C. J., and McNEILL, NICHOLSON, and WARREN, JJ., concur.