Cates v. Miles

• Decision Date: 11 December 1917
• Docket Number: 9396.
• Citation: 169 P. 888,67 Okla. 192,1917 OK 612
• Parties: CATES v. MILES et al.
• Court: Oklahoma Supreme Court

169 P. 888

67 Okla. 192, 1917 OK 612

CATES v. MILES et al.

No. 9396.

Supreme Court of Oklahoma

December 11, 1917

Rehearing Denied Jan. 16, 1918.

Syllabus by the Court.

Where a demurrer to a petition is sustained, and the plaintiff is granted time in which to amend, the error, if any, in sustaining said demurrer is waived, and cannot be assigned as error; and the judgment of the court dismissing the plaintiff's cause of action, where he fails to file an amended pleading under the state of the case above given, is proper.

Section 5238, Rev. Laws, Okl. 1910, as amended by Act March 23, 1917 (Laws 1917, c. 219, § 1), is mandatory, and, among other things, provides that: "The party desiring to appeal shall give notice in open court, either at the time the judgment is rendered, or within ten days thereafter, of his intentions to appeal to the Supreme Court."

Error from County Court, Tulsa County; H. L. Standeven, Judge.

Action by N. J. Cates against W. P. Miles and others. From a judgment sustaining a demurrer to plaintiff's second amended petition, he brings error. Appeal dismissed.

E. G Wilson, of Tulsa, for plaintiff in error.

Geo. T Brown, of Tulsa, for defendants in error.

KANE J.

This cause comes on to be heard upon the motion of the defendant in error to dismiss the appeal herein, upon the grounds that this court has never obtained, and has not now, jurisdiction of this cause, or of the person of the defendant in error.

An examination of the record discloses that upon the filing of a second amended petition in the court below a demurrer was interposed thereto, and thereafter the court entered the following order:

"That afterwards, to wit, on the 24th day of February 1917, the said demurrer coming regularly on for hearing, and the plaintiff appearing by his attorney Chas. L. Fields, and the defendant W. P. Miles appearing by his attorney George T Brown, and the court having heard the said demurrer, and the argument of counsel thereon, sustains the same, and plaintiff is given ten days to amend. To which ruling of the court in sustaining said demurrer the plaintiff at the time duly excepted."

Thereafter, and without further amending his petition pursuant to the leave granted, plaintiff in error filed his notice of "election to stand on original amended petition." Whereupon the opposite party filed a motion to dismiss the action, and thereafter, on the 4th day of May, 1917, judgment was entered dismissing said second amended petition as per said motion.

It is urged in the motion to dismiss that the appeal was taken from the judgment of May 4, 1917, and that therefore the act of the Legislature of March 23, 1917 (section 1, c. 219, Session Laws 1917), repealing the provisions of section 5238, Rev. Laws 1910, which in effect abolished summons in error, and enacting in lieu thereof a provision requiring the party desiring to appeal to give ten days' notice of his intention to appeal to be given in open court, is controlling in this case. The response denies this contention, and asserts that the appeal was taken from the order entered on the 24th day of February, 1917, and that therefore the law, as it stood before the act of March 23, 1917, governs.

Conceding that the appeal is attempted to be prosecuted from the order of February 24, 1917, sustaining the demurrer to the second amended petition, yet, as plaintiff in error was granted time to amend, and did not do so in compliance with the order, he thereby waived his right of appeal therefrom. The case of State ex rel. Freeling v. Martin, 162 P. 1088, is decisive of this point. In that case Mr. Commissioner Hooker, speaking for the court, said:

"The first proposition to which we will direct attention is as follows: It is contended by the defendant in error that on the 19th day of June his demurrer to the petition of the plaintiff was sustained by the court, and that the plaintiff, being present, obtained leave of the court to file an amended petition within ten days, which he asked for, and which was granted to him; that, inasmuch as the plaintiff failed to file an amended petition within the time allotted to him by the court in which so to do, and having failed to procure any extension of time in which to

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