SHAW v. STURGEON

SHAW v. STURGEON
1954 OK 28
266 P.2d 462
Case Number: 35822
Decided: 01/27/1954
Supreme Court of Oklahoma

Syllabus by the Court

¶0 An order of the court overruling a motion to dismiss an appeal without final judgment in the case is not an appealable order, but simply leaves the case standing in that court, the same as if no such motion had been made.

Appeal from the District Court of Seminole County, Bob Howell, J.

James F. Haning, Wewoka, and Jas. S. Hepburn, Guthrie, for plaintiffs in error.

Allen G. Nichols and Walter Billingsley, Wewoka, for defendants in error.

BLACKBIRD, J.

¶1 Hattie M. Shaw, individually and as administratrix of the estate of W.A. Shaw, deceased, filed her final account whereupon Mary Sturgeon filed an objection to the account, and, from an adverse ruling, appealed from the order and judgment of the County Court to the District Court of Seminole County. Hattie M. Shaw filed a motion to dismiss which was overruled. The appeal is from the order overruling the motion to dismiss.

¶2 A motion to dismiss has been lodged in this court for the reason that the order overruling the motion to dismiss made by the district court is not a final order. The motion to dismiss must be sustained. Oklahoma City Land & Development Co. v. Patterson, 73 Okl. 234, 175 P. 934, Arthur v. Arthur, Okl.Sup., 258 P.2d 1191, and In re Cochran's Estate, 48 Okl. 672, 149 P. 1089. In Oklahoma City Land & Development Co. v. Patterson, supra, it is said:

"An appeal does not lie to this court from an intermediate or interlocutory order made during the pendency of an action, which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits, unless the appeal sought to be taken comes within some one of the special orders from which an appeal is authorized by statute prior to final judgment in the main action."

¶3 And In re Cochran's Estate, supra, it is stated:

"An order of the court overruling a motion to dismiss an appeal without final judgment in the case is not an appealable order, but simply leaves the case standing in that court, the same as if no such motion had been made." Appeal dismissed.

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