HOPPER v. STEWARD

HOPPER v. STEWARD
1929 OK 280
279 P. 354
137 Okla. 228
Case Number: 19863
Decided: 07/09/1929
Supreme Court of Oklahoma

HOPPER
v.
STEWARD et al.

Syllabus

¶0 1. Appeal and Error--Pleading--Procedure for Appeal from 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, 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 exceptions 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--Order not Reviewable Where Defendant Failed to Elect to Stand on Demurrer and no Final Judgment Rendered.
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.

Error from District Court, LeFlore County; D. C. McCurtain, Judge.

Action by John S. Stewart and another, partners, doing business as Steward & Beutelschies, against W. T. Hopper. From the order of the trial court overruling demurrer to the petition filed in the trial court, defendant appeals. Dismissed.

Andrews & Aston, for plaintiff in error.
T. T. Varner, for defendants in error.

PER CURIAM.

¶1 The plaintiff in error, defendant below, appeals from an order of the district court of LeFlore county overruling the demurrer of the defendant to the petition of the plaintiffs filed in the trial court. The defendant excepted to the order overruling the demurrer and gave notice of appeal and was given time in which to make and serve case-made. The defendant asked for time in which to file answer to the plaintiffs' petition and was given 10 days from the date of the order within which to file answer in the cause. It is not affirmatively shown in the order overruling the demurrer that the defendant elected to stand on the demurrer, and no final judgment was rendered in the cause.

¶2 The facts in this case are analogous to the facts in the case of Stebbins et al. v. Edwards, 107 Okla. 139, 231 P. 507, in which this court announced the following rule:

"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 exceptions to the court's ruling thereon, and incorporating his exceptions in the record in the whole case when brought to this court after 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."