Plaintiff in error, in his petition in error filed in this court, sets out the following assignments of error:
"(1) Irregularity in the proceeding of the court, by which the plaintiff was prevented in having a fair trial; (2) that the judgment was not sustained by the evidence; *Page 343 (3) that the judgment is contrary to the law; (4) error in law committed at the trial and excepted to by the plaintiff; (5) error of the court in its construction of the contract, marked 'Exhibit A,' to the plaintiff's amended petition in holding that the said contract is an option."
It will be noted that the action of the trial court in overruling his motion for a new trial has not been assigned as error in the petition in error filed in this court. Our courts have uniformly held this omission to be fatal when it is sought, as in the case at bar, to have this court review the errors alleged to have been committed during the progress of the trial in the court below. Beugler et al. v. Polk,46 Okla. 403, 148 P. 990, and authorities there cited.
For this reason we recommend that the judgment of the trial court be affirmed.
By the Court: It is so ordered.