Morrill v. Casper

• Decision Date: 10 September 1903
• Citation: 73 P. 1102,13 Okla. 335,1903 OK 87
• Parties: MORRILL v. CASPER et al.
• Court: Oklahoma Supreme Court

73 P. 1102

13 Okla. 335, 1903 OK 87

MORRILL v. CASPER et al.

Supreme Court of Oklahoma

September 10, 1903

Syllabus by the Court.

1. Where a demurrer to a petition is sustained by the court, and the plaintiff thereupon applies for and gets leave to file an amended petition, he thereby waives the error, if any has been committed, in the ruling, order, and judgment of the court sustaining the demurrer. Berry et al. v. Barton et al (this court) 71 P. 1074, cited and followed.

Error from District Court, Pottawatomie County; before Justice B F. Burwell.

Action by William Morrill against Charles C. Casper and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Baldwin & Marsh, for plaintiff in error.

Pitman & Hood, for defendants in error.

BEAUCHAMP J.

The plaintiff in error commenced this action by filling in the district court of Pottawatomie county his petition praying that certain deeds to defendants in error, and whatever interest, title, or claim they may have in and to the northeast quarter of section 32, township 8 N., of range 5 E., I. M., in the county of Pottawatomie, be canceled, and for a decree removing the cloud from title of plaintiff, and decreeing the legal and equitable title to the said land to be in plaintiff; to which petition the defendants demurrer for the reasons, first, there is defect of parties defendant and, second, because the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants, which demurrer, after hearing, was by the court sustained on the 6th day of September, 1902. Upon application the plaintiff was given 10 days in which to file an amended petition. Afterwards, on the 18th day of September, on application the plaintiff was given 24 hours in which to file an amended petition. Afterwards, on the 18th day of September, on application the plaintiff was given 24 hours in which to file an amended petition. On the 19th day of September, on application, the time allowed plaintiff in which to file an amended petition was extended until September 22d. On September 23d, the plaintiff not having filed his amended petition within the time allowed by the court, the action was dismissed with costs to the plaintiff, and exceptions saved, from which order sustaining the demurrer and the judgment thereon plaintiff in error brings the case here by petition in error for review.

The defendants in error contend that, if any error was committed by the trial court in sustaining the demurrer to the petition, the plaintiff in error waived the same by taking leave to amend his petition, and direct our attention to the case of Berry v. Barton, 71 P. 1074, in which case a demurrer was sustained to the second count in defendants' answer, and the defendants took time in which to file an amended answer, but did not file same, and it was contended that the court erred in sustaining the demurrer against the second defense. We quote from the opinion by Burwell, J "It is not necessary to decide in this case as to whether the second count in the answer stated a defense, for the reason that when the demurrer was sustained the defendants were granted leave to amend, and by taking leave to...