Van Pelt v. Caldwell

1950 OK 103, 219 P.2d 205, 203 Okla. 195, 1950 Okla. LEXIS 474

• Court: Supreme Court of Oklahoma
• Decided: April 18, 1950
• Docket: No. 34417
• Status: Published

Opinion

PER CURIAM.

Plaintiff brought an action seeking to recover on contract for certain real estate commissions. An amended petition was filed and the defendants filed a motion to strike irrelevant matter from the amended petition. Without waiting for an order of the trial court on the motion to strike plaintiff filed a motion for judgment on the pleadings.

On June 10, 1949, the trial court sustained the motion to strike and gave plaintiffs 10 days to file an amended petition, and overruled the motion for judgment on the pleadings. On June 13, 1949, plaintiff filed a motion for new trial. On June 17th the court entered an order overruling the motion for new trial and plaintiff appeals.

Defendants have filed a motion to dismiss for the reason that the orders entered are not such as can be considered by this court on appeal prior to a final order or judgment. Assuming, without deciding, that this is an appeal from the order overruling the motion for judgment on the pleadings, such is not an order which can be reviewed prior to a final disposition of the case. Plaintiff relies upon Board of County Commissioners of Lincoln County v. Robertson, 35 Okla. 616, 130 P. 947. In Oklahoma City-Ada-Atoka Ry. Co. v. Parks, 182 Okla. 598, 78 P. 2d 791, this case was expressly overruled. Therein the court said:

“An order overruling a motion for judgment on the pleadings is not an appealable order, and where an appeal is taken from such an order prior to the entry of a final judgment or order in the cause, such appeal presents nothing properly reviewable by this court.”

Appeal dismissed.