Stebbins v. Edwards

• Decision Date: 02 December 1924
• Docket Number: Case Number: 12911
• Citation: Stebbins v. Edwards, 231 P. 507, 107 Okla. 139, 1924 OK 1094 (Okla. 1924)
• Parties: STEBBINS et al. v. EDWARDS.
• Court: Oklahoma Supreme Court

1924 OK 1094

231 P. 507

107 Okla. 139

STEBBINS et al. v. EDWARDS.

Case Number: 12911

Supreme Court of Oklahoma

Decided: December 2, 1924

Syllabus

¶0 1. Appeal and Error--Decisions Reviewable--Overruling Demurrer.

A defendant who seeks to have reviewed in this court an order of court overruling his demurrer to plaintiff's petition, may either elect to stand upon his demurrer, so that final judgment in the cause may be rendered, in which case he may appeal at once to this court, or he may elect to plead further, reserving his exception to the court's ruling thereon, and incorporating his exceptions in the record of the whole case when brought to this court after final judgment.

2. Same--Failure to Stand on Demurrer--Lack of Final Judgment.

Where, upon an order overruling defendant's demurrer to plaintiff's petition, defendant appeals to this court without electing to stand upon his demurrer, and without any final judgment in the cause, such appeal presents nothing properly reviewable by this court.

Biddison & Campbell, for plaintiffs in error.

West, Sherman, Davidson & Moore, for defendants in error.

GORDON, J.

¶1 In this case plaintiffs in error demurred to the petition of defendant in error; the demurrer was by the trial court overruled. The defendants below excepted to the overruling of demurrer and gave notice of intention to appeal from the judgment of the trial court overruling the demurrer. Defendants did not stand upon their demurrer, and no final judgment was entered in the cause. This court has heretofore held in the cases of Exchange Oil Co. et al. v. Crews et al., and Garfield Oil Co. v. Crews et al., 90 Okla. 245, 216 P. 674, that such an order overruling a demurrer is not a final order from which appeal may be taken to this court unless the party shall have elected to stand upon his demurrer. The first paragraph of the syllabus in that case is as follows:

"A defendant who seeks to have an order of the court overruling a demurrer to petition reviewed in this court may elect to stand on the demurrer, in which event, he may bring the case on appeal to this court at once, or he may elect to plead further, in which event no appeal can be taken from the order overruling the demurrer until the case is tried, and then the action of the trial court in overruling the demurrer may be presented to this court by appeal."

¶2 In the body of the opinion, the case of Union Pacific R. Co. v. Estes (Kan.) 15 P. 157, is quoted with approval. In the opinion, on page 157, the court said:

"A party who seeks to have the ruling of the district court on a demurrer to the petition reviewed in

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