CONSOLIDATED ALFALFA MILLING CO. v. WINSOR

CONSOLIDATED ALFALFA MILLING CO. v. WINSOR
1914 OK 49
138 P. 566
40 Okla. 362
Case Number: 3647
Decided: 02/03/1914
Supreme Court of Oklahoma

CONSOLIDATED ALFALFA MILLING CO. et al.
v.
WINSOR.

Syllabus

¶0 APPEAL AND ERROR--Assignment of Error-- Sufficiency. Where the record does not show any final disposition of the case, and the only assignment of error in the petition in error is "that there is error in said record and proceeding in this, to wit: That the court erred in overruling the motion of the plaintiff in error to dismiss this suit"-- there is noting presented for the Supreme Court to review.

Error from District Court, Tillman County; Frank Mathews, Judge.

Action by A. D. Winsor, for himself and for the balance of the stockholders, against the Consolidated Alfalfa Milling Company, a corporation, James J. Hanna, R. S. Rowland, W. E. Welch, and W. B. Skirvin. For the failure of the court to overrule motion to dismiss, defendants bring error. Dismissed.

C. W. Stringer, for plaintiffs in error
Mounts & Davis and Gray & McVey, for defendant in error

KANE, J.

¶1 The only error assigned in the petition in error in this cause is:

"That there is error in said record and proceeding in this, to wit: That the court erred in overruling the motion of the plaintiffs in error to dismiss this suit."

¶2 The defendant in error moved to dismiss the proceeding in error upon the ground that under our statute governing appellate procedure an order overruling a motion to dismiss a cause of action which leaves the case standing for further proceedings is not an appealable order. The motion to dismiss must be sustained. The following cases are authority to the effect that an order overruling a motion to quash a summons, or service, or to dismiss or strike a cause, is not an appealable order: Simpson v. Stein, 43 Kan. 35, 22 P. 1020; Simpson v. Kirschbaum & Co., 43 Kan. 36, 22 P. 1018; Brown v. Kimble, 5 Kan. 80; Dolbee v. Hoover, 8 Kan. 124; Edenfield v. Barnhart, 5 Kan. 225; Simpson v. Rothschild et al., 43 Kan. 33, 22 P. 1019; Kansas Rolling Mill Co. v. Bovard, 34 Kan. 21, 7 P. 622. As we borrowed our statute governing appeals from the state of Kansas subsequent to the rendition of the foregoing cases by its highest court, they are decisive upon the question under consideration. The appeal is dismissed.

¶3 All the Justices concur.