Sovereign Camp Woodmen of the World v. State ex rel. Read

• Decision Date: 12 March 1935
• Docket Number: Case Number: 25835
• Citation: Sovereign Camp Woodmen of the World v. State ex rel. Read, 1935 OK 250, 42 P.2d 896, 171 Okla. 387 (Okla. 1935)
• Parties: SOVEREIGN CAMP WOODMEN OF THE WORLD v. STATE ex rel. READ, Ins. Com'r.
• Court: Oklahoma Supreme Court

1935 OK 250

42 P.2d 896

171 Okla. 387

SOVEREIGN CAMP WOODMEN OF THE WORLD v. STATE ex rel. READ, Ins. Com'r.

Case Number: 25835

Supreme Court of Oklahoma

Decided: March 12, 1935

Syllabus

¶0 Appeal and Error--Order Overruling Motion to Quash Service of Summons not Appealable Prior to Final Judgment.

An order overruling motion to quash service of summons is not such an order as may be brought to this court for review prior to final disposition of the cause.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by the State on relation of Jess G. Read, State Insurance Commissioner, against the Sovereign Camp Woodmen of the World for the collection of certain taxes.From an order overruling the motion to quash service of summons, defendant appeals.Dismissed.

O. H. Searcy and H. L. Stuart, for plaintiff in error.

John M. Wheeler and Creekmore Wallace, for defendant in error.

PER CURIAM.

¶1The State ex rel. Jess G. Read, State Insurance Commissioner, filed a petition in the district court of Tulsa county against the Sovereign Camp Woodmen of the World, a corporation, and on the 15th day of May, 1934, a summons was issued and served by the sheriff of Oklahoma county by leaving a copy thereof with Jess G. Read, Insurance Commissioner, on the 19th day of May, 1934.On the 5th day of July, 1934, the defendant filed special appearance and motion to quash summons.The trial court heard this motion on the 30th day of July, 1934, overruled said motion to quash, and in the same order the court granted the defendant 30 days from the date of the order in which to plead "without prejudice to its right to appeal."

¶2The defendant gave notice of appeal from said order and asked the court for an order superseding the action of the court, which order of supersedeas and bond therefor was denied.The petition in error with casemade attached was filed in this courtAugust 29, 1934.

¶3The State ex rel. Insurance Commissioner has filed motion to dismiss for the reason the order overruling the motion to quash, which gives time to plead and leaves the case in court for further proceedings, is not an order which may be brought to the Supreme Court for review until final determination of the cause.The motion to dismiss must be sustained.In the case of Oklahoma City Land & Development Co. v. Patterson, 73 Okla. 234, , this court said:

"An appeal does not lie to this court from an intermediate or interlocutory order made during the pendency of an action, which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits, unless the appeal sought to be taken comes within some one of the special orders from which an appeal is authorized by statute prior to final judgment in the main action.

"A final order' is one ending the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to determine the rights of the parties."

¶4The court has applied the rule in many cases, such as an order overruling motion to withdraw an amended petition( Divine v. Harmon, 23 Okla. 901, 101 P. 1125); an order striking an amended petition( Adams v. Webb, 104 Okla. 180, 230 P. 878); an order overruling motion to substitute a cost bond ( Easton v. Broadwell, 8 Okla. 442, 58 P. 506).We have not found a case in this state directly passing upon an order overruling motion to quash summons.However, in an early case of O. O. Potter et al. v. J. D. Payne, 31 Kan. 218, 1 P. 617, that court had under consideration the identical question, and held that such an order was not appealable prior to final determination of the cause.This case was followed in the case of Kansas Rolling Mill Co. v. Bovard(Kan.)7 P. 622, and in Spaulding et al. v. Polley, 28 Okla. 764, 115 P. 864, this court recognized and confirmed the principle announced in the Kansas case in the following language:

"In the Kansas Rolling Mill Co. v. Bovard, 34 Kan. 21, 7 P. 622, it was held:

"'Petition in error from the district court to the Supreme Court will not lie to reverse an order of the district court refusing to set aside the service of the summons where the case is still pending undisposed of in the district court.'

"This is an unanimous opinion delivered by Mr. Justice Valentine at the July, 1885, term.

"In Simpson v. Rothschild et al., 43 Kan. 33, 22 P. 1019, in an unanimous opinion delivered by Mr. Justice Valentine at the January term, 1890, the syllabus is as follows:

"'The court below overruled a motion made by the defendant to quash the summons and to dismiss the action, and also overruled a motion made by the defendant to discharge the

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