
    MEYER v. JAMES.
    No. 861.
    Opinion Filed May 9, 1911.
    (115 Pac. 1016.)
    APPEAL AND ERROR — Assignment of Error — Necessity—Motion for New Trial. Where appellant fails to assign in his petition in error, as error, the overruling of a motion for a new trial, no question that seeks to have reviewed errors alleged to have occurred' during the progress of the trial in the court below is properly presented to this court, and such cannot- be reviewed.
    (Syllabus by the Court.)
    
      Error from Creek County Court; Josiah G. Davis, Judge.
    
    Action by S. A. James against Max Meyer. Judgment for plaintiff before a justice was affirmed in the county court, and defendant brings error.
    Dismissed.
    
      J. L. Byrne and C. C. Don Carlos, for plaintiff in error.
    
      E. B. Hughes, for defendant in error.
   HAYES, J.

This action was originally begun in a justice court of Creek county by defendant in error filing therein his bill of particulars, in which he alleged that he had sold and delivered to defendant therein a bill of goods amounting to $128.50, and that plaintiff in error had failed .and refused to pay for same. Plaintiff in error filed his answer, denying generally and specifically plaintiff’s allegations in his bill of particulars. The trial in the justice court resulted in a judgment for defendant in error, from which appeal was taken to the county court, in which court trial also resulted in judgment in favor of defendant in error. To reverse the judgment of the county court, plaintiff in error complains in his brief in this proceeding only of- errors alleged to have occurred during the progress of the trial court below.

There was a motion for a new trial by plaintiff in error, which was overruled by the trial court; but the action of the trial court in overruling a motion for a new trial has not been assigned as error in plaintiff in error’s petition in error in this court, and therefore none of the matters urged in his brief can be considered. AVhere appellant' fails, to assign as error the overruling of his motion for a new trial in his petition in error, no question which seeks to review errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court. Morton et al. v. Gassert, 17 Okla. 177, 87 Pac. 586.

Proceeding in error dismissed.

All the Justices concur.  