Opinion
No. 32263.
November 20, 1945.
(Syllabus.)
APPEAL AND ERROR — Order sustaining demurrer to portion of petition not appealable.
An appeal does not lie to the Supreme Court from an order of the trial court sustaining in part and overruling in part a demurrer to the petition which order leaves the case for trial on the cause of action to which the demurrer was not sustained.
Appeal from Superior Court, Seminole County; Bob Aubrey, Judge.
Action by Mrs. Eliza Fowler, administratrix of the estate of W.L. Fowler, deceased, against the City of Seminole. From an order of the trial court sustaining demurrer to one of the causes of action, plaintiff appeals. Dismissed.
Bishop Bishop, of Seminole, for plaintiff in error.
W.B. Edwards, of Seminole, and Horsley Epton, of Wewoka, for defendant in error.
W.L. Fowler commenced an action against the city of Seminole for damages and certain other relief involving alleged franchise rights plaintiff obtained from W.H. Caffey. The original petition was amended, whereupon the defendant filed a demurrer thereto.
The trial court sustained the demurrer to certain paragraphs of the petition, but overruled it as to the remaining allegations. A motion to dismiss has been filed for the reason that the order entered by the trial court is not a final order, and therefore no appeal can be taken therefrom prior to a determination of the rights of the parties under the remaining allegations of the petition and the pleadings subsequently filed.
We are of the opinion, and hold, that the cause must be dismissed. In the order of the trial court sustaining the demurrer it is stated that it was sustained in part but overruled as to the charges of actual destruction of certain property alleged to have been acquired in the purchase of the franchise. The defendant was given ten days within which to answer, and the answer has been filed. The case is therefore pending in the trial court on the issues raised by the remaining allegations in the petition of the plaintiff.
In Waldock v. State ex rel. Finney, 146 Okla. 257, 293 P. 1023, the court considered a motion to strike as a demurrer to the answer and cross-petition of defendants, which demurrer was sustained in part. Therein the court stated:
"An appeal does not lie to the Supreme Court from an order sustaining a demurrer to portions of the defendant's answer which leaves the cause pending in the trial court for final disposition upon plaintiff's petition and a defense interposed by defendant controverting the merits of plaintiff's action, as to which defense the demurrer was overruled."
Plaintiff cites Wesley v. Diamond, 26 Okla. 170, 109 P. 524. This case was specifically overruled in Attaway v. Watkins, 171 Okla. 102, 41 P.2d 914.
The remaining cases cited by plaintiff, involving the right of appeal from an order which sustains a demurrer to the sole cause of action, are not in point.
The appeal is dismissed.
GIBSON, C.J., HURST, V.C.J., and RILEY, OSBORN, BAYLESS, WELCH, CORN, and DAVISON, JJ., concur.