Opinion
No. 2173, Okla. T.
Opinion Filed January 13, 1909.
TRIAL — Instructions — Necessity of Exception. This court will not review an instruction given by the trial court to the jury, unless the instruction was duly excepted to at the time of the trial.
(Syllabus by the Court.)
Error from District Court, Lincoln County; J. H. Burford, Trial Judge.
Action by H. M. Johnson against Shedrick Taylor and others. Judgment for plaintiff, and defendants Shedrick Taylor and Nancy Taylor bring error. Affirmed.
This action was brought by the defendant in error H. M. Johnson to recover on a non-negotiable promissory note, and to foreclose a mortgage given to secure the same. He alleges in his petition that the note and mortgage were executed by the plaintiffs in error, and that the note is past due and unpaid. Plaintiffs in error in their answer make a general denial, and specifically deny that they executed and delivered the note to the payee therein, and further allege that if said note and mortgage were obtained from them they were obtained by fraud, and without their knowledge or consent. Upon a verdict in favor of defendant in error judgment was rendered by the trial court, from which plaintiff in error appealed.
W. H. McCarver and Devereux Hildreth, for plaintiffs in error.
Owen Neeley, for defendants in error.
Plaintiffs in error make the following assignments of error in their brief:
"First, that the court erred in ruling that the pleadings in this case only raised the issue of 'non est factum'; second, that the court erred in instructing the jury that the only question for them to find under the pleadings in this case was whether the present plaintiffs in error executed the note and mortgage sued on; third, that the court erred in overruling the motion for a new trial."
Counsel for plaintiffs in error in their argument on these assignments have discussed them all under the second assignment, and the matters complained of arose in the instructions of the court to the jury. The court instructed the jury that the only question for their consideration was whether the note and mortgage were executed by plaintiffs in error. The instructions are fully set out in the record and we have carefully examined same, but we have been unable to find from the record that the instruction complained of was excepted to by plaintiffs in error, and this court will not review instructions given on the trial of a cause unless the instruction complained of in this court was excepted to at the time. Everett v. Akins, 8 Okla. 184, 56 P. 1062; Boyd v. Bryan, 11 Okla. 56, 65 P. 940; Glaser v. Glaser, 13 Okla. 389, 74 P. 944.
The evidence in this case fairly tends to support the verdict of the jury; and, since no error of the trial court has been presented to this court for which the case should be reversed, the judgment of the trial court is affirmed.
All the Justices concur.