Hale v. Broe

• Decision Date: 13 February 1907
• Citation: 1907 OK 17,90 P. 5,18 Okla. 147
• Parties: JOHN R. HALE v. GEO. W. BROE.
• Court: Oklahoma Supreme Court

1907 OK 17

90 P. 5

18 Okla. 147

JOHN R. HALE v. GEO. W. BROE.

Supreme Court of Oklahoma

Decided: February 13, 1907

Syllabus

¶0 1. APPEALABLE ORDER--Order Overruling Demurrer. In an action for an accounting, where a demurrer to the petition is filed overruled, and afterward a motion asking the petition to be made more definite and certain is filed and overruled, and after the overruling of such motion the defendant asks to refile his demurrer, upon which no ruling is made and such demurrer is not refiled, and where afterwards the defendant objects to the appointment of a receiver, and otherwise appears in the case in all matters so far as it has been heard, the defendant will be held to have waived his right of appeal from the order overruling the demurrer and will be required to wait until after final judgment before he can have the question of the ruling upon the demurrer reviewed in this court.

2. SAME--Order Appointing Receiver. An order appointing a receiver is not reviewable in this court until after the final disposition of the case.

Error from the District Court of Comanche County; before Frank E. Gillette, Trial Judge.

Stevens & Miller, for plaintiff in error.

Parmenter & Myers, for defendant in error.

PANCOAST J.:

¶1 The record in this case discloses that on the 21st day of Februrary, 1905, the defendant in error as plaintiff below, George W. Broe, filed a petition in the district court of Comanche county against John R. Hale praying that an accounting be had between the defendant Hale and the plaintiff, and that a receiver be appointed to take possession of the property, a Buckeye ditcher, during the pendency of the action, and for judgment in the sum of $ 5,000.00, the amount which he claimed his interest to be in the property and which was due him as proceeds of the business.

¶2 The plaintiff in support of his application for a receiver, filed an affidavit setting up the facts in support of his contention. To this petition the defendant demurred upon two grounds: First, that the petition did not state a cause of action, and second, that several causes of action were improperly joined. The demurrer was heard on the 30th of March, 1905, and overruled; exception was saved and thereupon the defendant filed a motion to make the petition of plaintiff more definite and certain; which motion coming on to be heard was overruled and exception saved. After the overruling of the motion, the defendant asked leave to refile the demurrer, and stated that he would stand thereon. The record does not disclose that the court took any action upon this application to refile the demurrer, nor does the record show that the demurrer was in fact refiled.

¶3 The plaintiff then presented his application to the court for the appointment of a receiver. The court, after hearing the application, appointed E. M. English receiver, and fixed his bond at the sum of $ 2500.00, and upon application the cause was referred to John Foster, special referee, with direction to take an accounting between the plaintiff and defendant, and to hear and determine all questions of law and fact, and report his conclusions to the court; to which judgment and order the defendant at the time objected and excepted, and prayed an appeal to the supreme court.

¶4 The defendant asked the court for an order staying the execution of the order appointing a receiver pending the appeal to the supreme court, upon the defendant giving bond in a sum to be fixed by the court that he would pay all costs and damages that might accrue to the plaintiff by reason of the staying of said order, in case said order appointing a receiver should be affirmed, and further abide the order of the court with reference to the receiver; which application the court overruled and exception was saved.

¶5 The court, however, made an order that judgment be suspended upon the defendant Hale giving a good and sufficient bond in the sum of $ 5,000.00 to abide the judgment of the court and to pay any sum found due plaintiff upon the final determination of the cause, to which order the defendant excepted. The order appointing the receiver required him to take charge of and control and manage, under the orders and direction of the court, one Buckeye ditcher, owned by the parties, then being used in the digging and excavating of the Lawton sewer system, at Lawton, Oklahoma, and preserve the same until the final determination of the cause or until otherwise directed by the court.

¶6 At the time of perfecting the appeal in this case, no other or further action had been taken therein. There is nothing to show that the referee had tried the case or made his report; in fact, the parties both concede that nothing further had been done in the premises.

¶7 The plaintiff in error assigns as error the several propositions heard in the court below, upon which the court ruled adversely to him and to which he saved his exceptions. These include the ruling upon the demurrer and the motion to make the petition more definite and certain, the appointment of the receiver, the order requiring bond for the payment of the judgment, and the order directing the clerk to approve the bond, as well as matter arising out of the conditions of the bond itself. There is also an assignment of error, number three, to the effect that the court was in error in rendering judgment on the petition as it stood; but as before stated, the record does not disclose any final judgment, of any kind or for any amount.

¶8 We are...