WILSON v. BUIE

WILSON v. BUIE
1958 OK 93
324 P.2d 540
Case Number: 37824
Decided: 04/08/1958
Supreme Court of Oklahoma

BILLIE JOE WILSON, A MINOR, BY ROLAND WILSON, FATHER AND NEXT FRIEND, AND ROLAND WILSON FOR HIMSELF, PLAINTIFFS IN ERROR,
v.
W.H. BUIE, DEFENDANT IN ERROR.

Syllabus by the Court

¶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 a new trial be filed within the time prescribed by law

Appeal from District Court of Sequoyah County; Andrew Wilcoxen, Judge.

Action by Billie Joe Wilson, a minor, by Roland Wilson, his father and next friend, and Roland Wilson for himself against W.H. Buie to recover in damages for personal injury. From a judgment for the defendant plaintiffs appeal. Appeal dismissed.

J. Fred Green, Fred D. Green, Sallisaw, for plaintiffs in error.

W.S. Agent, Sallisaw, Hardin, Barton, Hardin & Garner, Fort Smith, Ark., for defendant in error.

HALLEY, Justice.

¶1 This action was commenced by Billie Joe Wilson, a minor by his father and next friend Roland Wilson and Roland Wilson for himself to recover in damages for personal injury.

¶2 At the conclusion of the evidence offered for the plaintiffs defendant demurred and the trial court sustained the demurrer to the evidence and thereupon entered judgment for the defendant. Plaintiffs did not file a motion for new trial.

¶3 Plaintiffs have appealed and raise the single issue that the trial court erred in sustaining the demurrer to the evidence.

¶4 In order to review the action of the trial court in sustaining the demurrer to the evidence it is necessary to file a motion for new trial. Lowenstein v. Todd, 40 Okl. 18, 135 P. 737; Tyler v. Tyler, 44 Okl. 411, 144 P. 1023; Johnson v. Board of Com'rs of Logan County, 125 Okl. 96, 256 P. 900; Sac & Fox Oil Co. v. Owens, 133 Okl. 96, 271 P. 240; Hunt v. Tribune Publishing Co., 172 Okl. 139, 44 P.2d 889.

¶5 A ruling on the sufficiency of the evidence can only be presented to the Supreme Court after a determination of a motion for new trial. James v. Jackson, 30 Okl. 190, 120 P. 288; Stump v. Porter, 31 Okl. 157, 120 P. 639; Insurance Co. of North America v. Little, 34 Okl. 449, 125 P. 1098; Malleck v. Thomas, 109 Okl. 95, 234 P. 1107. In Stump v. Porter, supra, it is stated:

"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."

¶6 Appeal dismissed.

¶7 CORN, V.C.J., and WILLIAMS, BLACKBIRD and JACKSON, JJ., concur.

¶8 WELCH, C.J., and DAVISON, JOHNSON and CARLILE, JJ., dissent.