
    VANDENBURG v. WINNE.
    No. 5076.
    Opinion Filed August 10, 1915.
    Rehearing Denied February 29, 1916.
    (155 Pac. 245.)
    APPEAL AND ERROR — Presentation Below — Motion for New Trial. Errors occurring during tlie trial cannot be considered by the Supreme Court, unless a motion for a new trial, founded upon, and including such errors, 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.
    (Syllabus by Brown, C.)
    
      Error from District Court, Cutter County; James R. Tolbert, Judge.
    
    Action by John Winne, doing business as the John Winne Lumber Company, against H. J. Vandenburg. Judgment for plaintiff, and defendant brings error.
    Dismissed.
    
      T. W. Jones-, Jr., for plaintiff in error.
    
      George T. Webster, for defendant in error.
   Opinion by

BROWN, C.

The defendant in error commenced this action October 19, 1910, against the plaintiff in error by filing his petition in the district court of Ouster county to recover the sum of $2,285.45, which it is alleged the plaintiff in error owed the defendant in error for building material.

On the 11th day of April, 1911, upon agreement of the parties, the cause was referred to a referee to take testimony, make findings of fact and conclusions of law in the cause, and report same to the district court. Thereafter, pursuant to the order of the court, the referee took testimony, made findings of fact and conclusions of law, and filed the same in the district court October 25, Í912. On the last-mentioned date the record discloses' that the plaintiff in error filed a motion for a new trial.

On November 7, 1912, the report of the referee came up for hearing before the court, and the same was confirmed, and a judgment rendered against the plaintiff in error, as recommended by the said referee. However, the record nowhere discloses that the court ever acted upon the motion for a new trial.

The plaintiff in error only complains here of errors that occurred during the trial of the cause, and this court has repeatedly held in a long line of well-considered cases that errors occurring during the trial cannot be considered by the court unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its rulings excepted to and afterwards assigned for error in the Supreme Court. Kee v. Park et al., 32 Okla. 302, 122 Pac. 712; Stinchcomb et al. v. Myers, 28 Okla. 597, 115 Pac. 602, and cases cited therein; Greer v. Moorman et al., 40 Okla. 30, 135 Pac. 736; St. L. & S. F. R. Co. v. Leake et al., 34 Okla. 77, 123 Pac. 1125.

The appeal should therefore be dismissed.

By the Court: It is so ordered.  