Emerson v. Lewis, 36335
| Decision Date | 28 September 1954 |
| Docket Number | No. 36335,36335 |
| Citation | 274 P.2d 529 |
| Parties | John R. EMERSON, Plaintiff in Error, v. Sidney LEWIS and Marie Lewis, his wife, Defendants is Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A judgment is the final determination of the rights of the parties in an action as to one or more causes of action. It must judicially determine all the issues raised by the pleadings as to such cause or causes of action except such as are waived or abandoned on the trial of the case.
2. An order which neither grants nor denies the relief sought and which does not dispose of all the issues in the case or some one or more of the causes of action thereof cannot be construed to rise to the dignity of a judgment.
B. C. Franklin, Tulsa, for plaintiff in error.
E. J. Doerner, Tulsa, for defendants in error.
Plaintiff, John R. Emerson, brought this action against defendants, Sidney Lewis and Marie Lewis for the rescission of a real estate contract. Defendants filed an answer controverting plaintiff's allegations and also filed a cross-petition in which they sought judgment against plaintiff for damages for allegedly fraudulent conduct on his part. A trial was had to the court on September 18, 1953, on plaintiff's petition and defendants' answer, the issues raised by defendants' cross-petition being reserved for future determination by the jury. At the conclusion of the trial the court announced certain findings and issued certain orders which were later reduced to writing in an instrument styled 'Journal Entry of Judgment' and filed in the case. Plaintiff filed a motion for new trial, which was overruled on October 3, 1953, and now appeals to this court.
Defendants contend that the so-called judgment herein is not a final judgment or final order and therefore not appealable and that the appeal should be dismissed. Upon consideration of the 'judgment' in question, we are of the opinion that the contention is well taken.
It should be noted that the relief sought by plaintiff consisted of rescission of the contract and recovery of possession of the premises. The judgment or order of the trial court neither granted nor denied the relief sought. Instead, the judgment orders the plaintiff to deliver an abstract of title for examination, and contains the following provision:
'(e) That should the plaintiff fail, neglect and refuse to deliver to the clerk of this court an abstract of title covering said premises, within the time and as required by this decree, judicial cancellation or forfeiture of said contract will be denied and judgment will be rendered in favor of the defendants and against the plaintiff, denying the plaintiff the relief sought in his amended petition upon a showing being made by defendants that plaintiff has not complied thereunder.' (Emphasis added.)
The 'judgment' also orders plaintiff to execute and deliver to the defendants a warranty deed upon the defendants paying into the office of the court clerk the sum of $1801.60, but it does not require the defendants to pay such sum and makes no provision for what is to happen should defenda...
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