Dennis v. Lathrop

Supreme Court of Oklahoma

Dennis v. Lathrop

1951 OK 87, 233 P.2d 969, 204 Okla. 684, 1951 Okla. LEXIS 556

CourtSupreme Court of Oklahoma

DecidedMarch 27, 1951

Docket34592

StatusPublished

Cited by14 cases

This text of 1951 OK 87 (Dennis v. Lathrop) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dennis v. Lathrop, 1951 OK 87, 233 P.2d 969, 204 Okla. 684, 1951 Okla. LEXIS 556 (Okla. 1951).

Pincite

Opinion

JOHNSON, J.

Plaintiffs, James A. Lathrop, Henry A. Lathrop, Nannie J. Buck and Lucy K. Schwartz, filed an *685 action against the Consolidated Gas Utilities Corporation alleging that they were owners of a certain 12 1/2 per cent interest in the production of gas from real property. Mrs. J. M. Dennis, having made due application therefor and being permitted by proper order of the court, filed a petition in intervention alleging a one-third interest in the 12 1/2 per cent interest claimed by plaintiffs. R. A. Lathrop also filed a petition in intervention. R. A. Lathrop thereafter assigned his interest to plaintiffs, and the action continued as to the original plaintiffs and the Consolidated Gas Utilities Corporation and Mrs. J. M. Dennis as intervener. Issues were made upon the petition filed by Mrs. J. M. Dennis, the petition of the original plaintiffs and the answer of Consolidated Gas Utilities Corporation.

Thereafter Mrs. J. M. Dennis filed an amendment to the petition in intervention in which she sought to recover expenses and attorney fees and damages for alleged wrongful bringing of the action. James A. Lathrop et al., as original plaintiffs, filed a motion to strike the answer and cross-petition denominated an amendment to the answer, and on the 27th day of January, 1950, the court sustained the motion to strike. On the same date the court ordered the two-thirds interest in certain moneys held for the entire 12 1/2 per cent interest paid to the plaintiffs. Mrs. J. M. Dennis appeals from these orders.

A motion to dismiss has been filed for the reason that the appeal is not from a final order or judgment of the trial court and that the case is still pending in the trial court for disposition on the merits. The motion to dismiss must be sustained. There is no contest between Mrs- J. M. Dennis and the plaintiffs as to the two-thirds interest in the 12 1/2 per cent interest and it admittedly belongs to the plaintiffs. The appeal from the order striking from the case the answer and cross-petition of Mrs. J. M. Dennis is not a final order. Attaway v. Watkins, 171 Okla. 102, 41 P. 2d 914; Oklahoma City Land & Development Co. v. Patterson, 73 Okla. 234, 175 P. 934.

In Oklahoma City Land & Development Co. v. Patterson, supra, it is stated:

“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.”

In Attaway v. Watkins, supra, it is stated:

“Under section 528, O. S. 1931, which provides that an appeal may be takeh from an order which involves the merits of the action or some part thereof, an appeal does not lie to this court prior to a final determination of the cause, from an intermediate or interlocutory order which strikes from the answer an alleged material defense, but which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits.”

In Attaway v. Watkins, supra, this court specifically overruled Wesley v. Diamond, 26 Okla. 170, 109 P. 524, which held to the contrary.

Appeal dismissed.

LUTTRELL, V. C. J., and CORN, DAVISON, HALLEY, and O’NEAL, JJ., concur. ARNOLD, C. J., and WELCH and GIBSON, JJ., dissent.

Free access — add to your briefcase to read the full text and ask questions with AI

JOHNSON, J.

Plaintiffs, James A. Lathrop, Henry A. Lathrop, Nannie J. Buck and Lucy K. Schwartz, filed an *685 action against the Consolidated Gas Utilities Corporation alleging that they were owners of a certain 12 1/2 per cent interest in the production of gas from real property. Mrs. J. M. Dennis, having made due application therefor and being permitted by proper order of the court, filed a petition in intervention alleging a one-third interest in the 12 1/2 per cent interest claimed by plaintiffs. R. A. Lathrop also filed a petition in intervention. R. A. Lathrop thereafter assigned his interest to plaintiffs, and the action continued as to the original plaintiffs and the Consolidated Gas Utilities Corporation and Mrs. J. M. Dennis as intervener. Issues were made upon the petition filed by Mrs. J. M. Dennis, the petition of the original plaintiffs and the answer of Consolidated Gas Utilities Corporation.

Thereafter Mrs. J. M. Dennis filed an amendment to the petition in intervention in which she sought to recover expenses and attorney fees and damages for alleged wrongful bringing of the action. James A. Lathrop et al., as original plaintiffs, filed a motion to strike the answer and cross-petition denominated an amendment to the answer, and on the 27th day of January, 1950, the court sustained the motion to strike. On the same date the court ordered the two-thirds interest in certain moneys held for the entire 12 1/2 per cent interest paid to the plaintiffs. Mrs. J. M. Dennis appeals from these orders.

A motion to dismiss has been filed for the reason that the appeal is not from a final order or judgment of the trial court and that the case is still pending in the trial court for disposition on the merits. The motion to dismiss must be sustained. There is no contest between Mrs- J. M. Dennis and the plaintiffs as to the two-thirds interest in the 12 1/2 per cent interest and it admittedly belongs to the plaintiffs. The appeal from the order striking from the case the answer and cross-petition of Mrs. J. M. Dennis is not a final order. Attaway v. Watkins, 171 Okla. 102, 41 P. 2d 914; Oklahoma City Land & Development Co. v. Patterson, 73 Okla. 234, 175 P. 934.

In Oklahoma City Land & Development Co. v. Patterson, supra, it is stated:

“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.”

In Attaway v. Watkins, supra, it is stated:

“Under section 528, O. S. 1931, which provides that an appeal may be takeh from an order which involves the merits of the action or some part thereof, an appeal does not lie to this court prior to a final determination of the cause, from an intermediate or interlocutory order which strikes from the answer an alleged material defense, but which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits.”

In Attaway v. Watkins, supra, this court specifically overruled Wesley v. Diamond, 26 Okla. 170, 109 P. 524, which held to the contrary.

Appeal dismissed.

LUTTRELL, V. C. J., and CORN, DAVISON, HALLEY, and O’NEAL, JJ., concur. ARNOLD, C. J., and WELCH and GIBSON, JJ., dissent.

Cite This Page — Counsel Stack

Bluebook (online)

1951 OK 87, 233 P.2d 969, 204 Okla. 684, 1951 Okla. LEXIS 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-v-lathrop-okla-1951.

Opinion

Related

Cite This Page — Counsel Stack