WESTERN AUTO STORE v. AUTO PARTS & EQUIPMENT CO.

WESTERN AUTO STORE v. AUTO PARTS & EQUIPMENT CO.
1953 OK 218
259 P.2d 535
Case Number: 36006
Decided: 07/14/1953
Supreme Court of Oklahoma

Syllabus

¶0 An order overruling a demurrer to the petition is not a final order and where an appeal is taken from such order prior to the entry of a final judgment or order in the cause, such appeal presents nothing properly reviewable by this court.

Appeal from the District Court of Stephens County, Arthur J. Marmaduke, J.

George W. Moser, Comanche, for plaintiff in error.

Jerome Sullivan, Duncan, for defendant in error.

CORN, J.

¶1 This action was brought by Auto Parts and Equipment Company, a corporation, to enjoin C.D. Hanks, owner and operator of Western Auto Store, from selling a commercial product below a certain price. At a hearing held November 14, 1952, the court granted a temporary injunction. No appeal was taken from this order. C.D. Hanks thereafter filed a general demurrer and a special demurrer and on the 9th day of January 1953, the court overruled both the general and the special demurrer.

¶2 Although the defendant C.D. Hanks stated in open court that he did not desire to plead further and stood upon his demurrers, no judgment was entered other than to overrule the demurrers.

¶3 A motion to dismiss has been filed for the reason that the order as made cannot be reviewed until there has been a final judgment or order in the case. The motion to dismiss must be sustained. In Robertson v. State ex rel. Pinson, 195 Okl. 641, 163 P.2d 975, it is stated:

"An order overruling a demurrer to the petition is not a final order, and where an appeal is taken from such order prior to the entry of a final judgment or order in the cause, such appeal presents nothing properly reviewable by this court."

¶4 This has been the repeated holding of this court. See, Board of Com'rs of Harmon County v. Kenn, Dist. Judge, 194 Okl. 593, 153 P.2d 483; Oklahoma City-Ada-Atoka Ry. Co. v. Parks, 182 Okl. 598, 78 P.2d 791; McGrath v. Rorem, 123 Okl. 163, 252 P. 418.

¶5 Appeal dismissed.