Jones v. Toomey

• Decision Date: 08 December 1925
• Docket Number: Case Number: 12869
• Citation: Jones v. Toomey, 115 Okla. 169, 241 P. 1105, 1925 OK 989 (Okla. 1925)
• Parties: JONES et al. v. TOOMEY.
• Court: Oklahoma Supreme Court

1925 OK 989

241 P. 1105

115 Okla. 169

JONES et al. v. TOOMEY.

Case Number: 12869

Supreme Court of Oklahoma

Decided: December 8, 1925

Syllabus

¶0 1. Appeal and Error--Procedure for Seeking Review of Order Overruling Demurrer to Petition.

A defendant who seeks to have reviewed in this court an order of court overruling his demurrer to plaintiff's petition must either elect to stand upon his demurrer, in which event final judgment must be rendered in the cause by the court, or reserve his exception to the order overruling his demurrer, plead further, and, upon appeal from final judgment in the whole cause, have the alleged error reviewed here.

2. Same--Right to Review--Necessity for Final Judgment.

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.

Commissioners' Opinion Division No. 2.

Error from District Court, Tulsa County; W. B. Williams, Judge.

Action by Paul Toomey against Richard Lloyd Jones and. Tulsa Tribune Company. From an order overruling the demurrers of defendants, the latter appeal. Appeal dismissed.

Biddison & Campbell, for plaintiffs in error.

Rogers & Jones, for defendant in error.

ESTES, C.

¶1 Paul Toomey sued Richard Lloyd Jones and Tulsa Tribune Company for libel. Defendants demurred. The order recites simply:

"Thereupon the court doth overrule each of said demurrers, to which ruling, order, and judgment of the court each of the defendants severally excepted and each separately gave notice in open court of his intention to appeal," etc.

¶2 The record does not disclose that defendants elected to stand upon their demurrers. No judgment was rendered against defendants.

¶3 In Culp et al. v. State ex rel. Shores, 109 Okla. 6, 234 P. 730, being the last pronouncement of this court on the questions here involved, it is held:

"A defendant who seeks to have reviewed in this court an order of court overruling his demurrer to plaintiff's petition, must either elect to stand upon his demurrer, in which event final judgment must be rendered in the cause by the court, or reserve his exception to the order overruling his demurrer, plead further, and upon appeal from the final judgment in the whole cause, have the alleged error reviewed here.

"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."

¶4 Under that case and the authorities therein cited, this proceeding for review is not predicated upon an appealable order, as shown by the face of the record. Nothing is presented properly reviewable by this court. Under this state of case, although no application has been lodged for such purpose, it is the duty of the court, being without jurisdiction, to dismiss this appeal on its own motion.

¶5 In 4 C. J. 589...