W. H. ASHLEY SILK CO. v. OKLAHOMA FIRE INS. CO.

W. H. ASHLEY SILK CO. v. OKLAHOMA FIRE INS. CO.
1912 OK 532
125 P. 449
33 Okla. 348
Case Number: 1919
Decided: 07/23/1912
Supreme Court of Oklahoma

W. H. ASHLEY SILK CO.
v.
OKLAHOMA FIRE INS. CO.

Syllabus

¶0 APPEAL AND ERROR-- Decisions Reviewable--Order Sustaining Demutter. Under section 6067, Comp. Laws 1909, an appeal may be taken from an order sustaining a demurrer to a petition prior to the entry of a final judgment against the pleader.

Stewart & Stewart, for plaintiff in error.
Brook & Brook, for defendant in error.

KANE, J.

¶1 This is an appeal from an order sustaining a demurrer to the petition. Counsel for defendant in error, in their brief, do not controvert the contention of counsel for plaintiff in error on the merits, but contend that, inasmuch as the appeal was taken prior to the entry of final judgment against the pleader, the same must be dismissed, and cite Grunawalt v. Grunawalt, 24 Okla. 756, 104 P. 905, as an authority to that effect. We do not think that case is in point. The case of Wesley et al. v. Diamond et al., 26 Okla. 170, 109 P. 524, is more analogous. In the latter case it was held:

"Under section 6067, Comp. Laws 1909, an order that involves the merits of an action or some part thereof may be reversed, vacated, or modified by the Supreme Court before the final judgment is rendered in the cause in the trial court."

¶2 Section 6067, supra, specifically provides that an appeal lies from an order which sustains or overrules a demurrer. The judgment of the court below must be reversed and the cause remanded, with directions to overrule the demurrer.

¶3 TURNER, C. J., and HAYES, WILLIAMS, and DUNN, J., concur.