IN RE RICHARDSON'S GUARDIANSHIP

IN RE RICHARDSON'S GUARDIANSHIP
1953 OK 32
253 P.2d 565
208 Okla 80
Case Number: 35636
Decided: 02/10/1953
Supreme Court of Oklahoma

Syllabus

¶0 The ruling on a demurrer to the evidence is a "decision occurring on the trial" and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion for new trial be filed within the time prescribed by law.

Appeal from District Court, Cotton County; Floyd L. Jackson, Judge.

Action by Ethel Pults and I.A. Richardson for the appointment of a guardian for G.B. Richardson, incompetent. From an order of the District Court sustaining a demurrer to their evidence, on appeal from County Court, petitioners appeal. Appeal dismissed.

William T. Powells, Walters, for petitioners.

Walter Hubbell and Luther Eubanks, Walters, for respondents.

WILLIAMS, J.

¶1 I.A. Richardson and Ethel Pults filed a petition in the county court of Cotton county, alleging the incompetency of their half-brother, G.B. Richardson, and asking that a guardian be appointed for him. Hearing was had as provided by law, at the conclusion of which the county judge found him to be incompetent and appointed a guardian. Appeal was taken to the district court by the said G.B. Richardson, where trial was had de novo. At the conclusion of petitioners' evidence, respondent, G.B. Richardson, demurred thereto; the demurrer was sustained; judgment was entered for respondent; petitioners thereupon gave notice in open court of intentions to appeal to the Supreme Court.

¶2 Petition in error presents three allegations of error: that the court erred in sustaining the demurrer; that the court erred in not rendering judgment for petitioners; that the court erred in his statement of fact (summarizing the evidence). It is evident that a determination of any one of these three allegations of error would require a review of the evidence by this court.

¶3 A motion to dismiss appeal has been filed in this court by respondent, G.B. Richardson, for the reason that no motion for new trial was filed and ruled upon, and that therefore this court is without jurisdiction to review the ruling of the trial court. This point is well taken. In Gilliam v. Juccion, 203 Okla. 69, 218 P.2d 380, we held:

"The ruling on a demurrer to the evidence is a `decision occurring on the trial,' and in order to enable the Supreme Court to review such ruling, it is necessary that a motion for new trial be filed within the time prescribed by law."

¶4 See Ardmore Oil & Milling Co. v. Doggett Grain Co., 32 Okla. 280, 122 P. 241, for an identical ruling. See also, O'Balliet v. Lillard, 205 Okla. 467, 238 P.2d 798; and In re Duncan, 129 Okla. 125, 263 P. 1083.

¶5 Appeal dismissed.

¶6 HALLEY, C.J., JOHNSON, V.C.J., and WELCH, CORN, DAVISON, O'NEAL, and BLACKBIRD, JJ., concur.