Summary
In Consolidated Alfalfa Milling Co. v. Roberts, 40 Okla. 304, 137 P. 1179, we held in the first paragraph of the syllabus that "an order of the district court overruling a motion to dismiss is not reviewable in the Supreme Court until a final judgment has been rendered in the case."
Summary of this case from State v. AlfordOpinion
No. 3468
Opinion Filed January 13, 1914.
APPEAL AND ERROR — Decisions Reviewable. An order of the district court overruling a motion to dismiss is not reviewable in the Supreme Court until a final judgment has been rendered in the case.
Error from District Court, Tillman County; Frank Mathews, Judge.
Action by H. L. Roberts for himself and others, subscribers to the stock of defendant corporation, against the Consolidated Alfalfa Milling Company, a corporation, and others. Motion to dismiss below overruled, and defendants bring error. Dismissed.
C. W. Stringer, for plaintiffs in error.
Mounts Davis and Gray McVay, for defendants in error.
The defendants in error, plaintiffs below, filed their amended petition in the district court of Tillman county on the 17th day of September, 1910. Thereafter each of the defendants filed a separate motion to dismiss said case for the reason "that the court has no jurisdiction of the person of said defendant." The defendant the Consolidated Alfalfa Milling Company also filed a separate motion to quash the summons. The court, on the 7th day of September, 1911, overruled "each and all of the said motions," to which ruling of the court the defendants respectively excepted, and from such order overruling said motions to dismiss defendants prosecute this appeal, assigning as error "that the court erred in overruling the motions of the plaintiffs in error to dismiss the suit." The case is now before this court on the motion of defendants in error to dismiss the appeal "for the reason that no final judgment appears to have been entered in said cause, and that said order and orders of said district court assigned as error in said petition in error are not appealable to this court, that they are not final, and are not subject to review herein in the absence of any final order or judgment of the said district court duly entered and brought to this court for review, as provided by law."
This case is still pending in the court below, and, until a final judgment or disposition of the same is made in that court, the cause is not reviewable in this court. See Brown v. Kimble, 5 Kan. 81; Edenfield v. Barnhart, 5 Kan. 225; Simpson v. Stein, 43 Kan. 35, 22 P. 1020; Spaulding v. Polley, 28 Okla. 764, 115 P. 864; Snyder v. Elliott, 26 Okla. 856, 110 P. 784; Simpson v. Kirschbaum, etc., 43 Kan. 36, 22 P. 1018; Dolbee v. Hoover, 8 Kan. 124; Simpson v. Rothschild, 43 Kan. 33, 22 P. 1019; Kansas Rolling Mill Co. v. Bovard, 34 Kan. 21, 7 P. 622; Reynolds v. Packers' Nat. Bank, 66 Kan. 461, 71 P. 847. The appeal is therefore dismissed.
All the Justices concur.