Freeman v. Gibson

4 Citing cases

  1. State Insurance Fund v. Trieschmann

    244 P.2d 1128 (Okla. 1952)   Cited 5 times
    In State Ins. Fund v. Trieschmann, 206 Okla. 533, 244 P.2d 1128, 1131, we said: "Where a demurrer to a petition is sustained and plaintiff has nothing further to plead and elects to stand on his petition and his action is dismissed, the plaintiff has no further relief except such as may be granted by an appellate court.

    "We think, however, that no case can be found where a party will be allowed an appeal from a decision overruling a demurrer to a petition before final judgment is rendered, where the party has pleaded over, or otherwise proceeded with the case." Other cases denying the appeal where same was attempted prior to the rendition of a judgment are Freeman v. Gibson, 107 Okla. 220, 232 P. 806, and Sokolosky v. Black, Sivalls Bryson, Inc., 197 Okla. 68, 168 P.2d 618. However, in the case at bar defendant did present a demurrer to the petition and did save exceptions and elect to stand on the demurrer and gave notice of an intention to appeal. A continuance was had and later a trial was held and judgment was entered.

  2. Oklahoma City-Ada-Atoka Ry. Co. v. Parks

    182 Okla. 598 (Okla. 1938)   Cited 19 times
    In Oklahoma City-Ada-Atoka Ry. Co. v. Parks, 182 Okla. 598, 78 P.2d 791, we pointed out the distinction between an order sustaining a demurrer to the petition, which was an appealable order in that it prevented the entry of a further judgment in the case, and an order overruling a demurrer to the petition, which left the case pending to be tried on its merits.

    We have found no other decision of this court, before or after the Robertson Case, dealing with an appeal from an order overruling a motion for judgment on the pleadings, but we have examined the cases involving the right to appeal from an order overruling a demurrer to a petition (to which the motion for judgment on the pleadings was compared in the Robertson Case, supra) and find that the cases hold that no appeal lies to this court from such an order, but the same may be reviewed when properly presented in an appeal from a final order or judgment in the cause. Hopper v. Steward (1929) 137 Okla. 228, 279 P. 354, and cases there cited; McGrath v. Rorem (1926) 123 Okla. 163, 252 P. 418; Stebbins v. Edwards (1924) 107 Okla. 139. 231 P. 507; Freeman v. Gibson (1925) 107 Okla. 220, 232 P. 806. See, also, 3 C. J. 481; 2 R. C. L. 43; 2 Am. Jur. 892. It is to be noted that the court in the Robertson Case, supra, cited as authority for the holding therein the case of Ashley Silk Co. v. Oklahoma Fire Ins. Co. (1912) 33 Okla. 348, 125 P. 449, which case held that an order sustaining a demurrer was appealable prior to entry of final judgment. From an examination of the cases above cited, it can be seen that a different rule has been enunciated and followed where an appeal is taken from an order overruling a demurrer prior to entry of a final order or judgment in the cause.

  3. Miller v. Noble Drilling Co.

    271 P. 666 (Okla. 1928)

    "Where, upon an order overruling defendant's demurrer to plaintiff's petition, defendant appeals to this court without the rendition of a final judgment in the cause, such appeal presents nothing properly reviewable by this court." Jones v. Toomey, 115 Okla. 169, 241 P. 1105; Culp v. State, 109 Okla. 6, 234 P. 730; Stebbins v. Edwards, 107 Okla. 139, 231 P. 507; Freeman v. Gibson, 107 Okla. 220, 232 P. 806. That there is a want of appellate jurisdiction in such case is not required to be brought to our notice by the adverse party, for this may be determined on our own motion.

  4. Culp v. State

    234 P. 730 (Okla. 1925)   Cited 6 times

    "Further orders to plead in said cause will be made or taken in accordance with the judgment of the Supreme Court as will appear from the mandate therein." No further judgment in the case was either rendered or entered, therefore, under authorities of Exchange Oil Company v. Crews et al., 90 Okla. 245, 216 P. 674, and Stebbins et al. v. Edwards, 107 Okla. 139, 231 P. 507, and the more recent case of Freeman et al. v. Gibson, 107 Okla. 220, 232 P. 806, the appeal in this case should be dismissed. The defendants in the court below should be required to elect whether they will stand upon their demurrer; if they elect to stand, judgment should be rendered and entered for plaintiff, and appeal may be then taken by defendants to this court. If defendants shall elect to plead further they may save their exceptions to the action of the court in overruling their demurrer and the question may be properly presented to this court upon the whole case, when final judgment shall have been rendered and appeal shall have been taken to this court.