The defendant in error commenced this action October 19, 1910, against the plaintiff in error by filing his petition in the district court of Custer 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, *Page 680 and filed the same in the district court October 25, 1912. 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. Keev. Park et al., 32 Okla. 302, 122 P. 712; Stinchcombet al. v. Myers, 28 Okla. 597, 115 P. 602, and cases cited therein; Greer v. Moorman et al., 40 Okla. 30,135 P. 736; St. L. S. F. R. Co. v. Leake et al.,34 Okla. 77, 123 P. 1125.
The appeal should therefore be dismissed.
By the Court: It is so ordered. *Page 681