Langston v. Thigpen , 33 Okla. 605 ( 1912 )

This case presents error from the district court of Okmulgee county. In May, 1908, S. G. Langston commenced his action against J. H. Thigpen and J. E. Long, by filing his petition in the above-named court, in which he asked for certain relief. Thereafter, and on the 4th day of December, 1909, in the absence of the defendants, and without appearance for them, or either of them, the cause was tried to a jury, which returned its verdict in favor of plaintiff for $1,250. Thereafter, and on the 29th day of November, 1910, the said Thigpen began his action under the provisions of section 6094, 6095, Comp. Laws 1909 (sections 4760, 4761, Wilson's Rev. Ann. St. 1903), for the purpose of securing an order from the district court vacating the judgment in the said cause on the grounds therein set forth. On the pleadings filed and the evidence taken therein, the district court, on the 31st day of March, 1911, entered its order adjudging and decreeing that the judgment theretofore rendered on the 4th day of December, 1909, be vacated, set aside, and a new trial granted. Thereafter counsel for defendant filed a motion for a new trial, which the court, after having considered, overruled, and the cause has been filed in this court on petition in error and case-made for the purpose of securing a review of the said order.

Counsel for defendant in error have filed their motion to dismiss the proceeding in error, for the reason, inter alia, that the order appealed from is not a final or appealable order, from which appeal lies to this court. This motion, on the authority of Smith v. Whitlow et al., 31 Okla. 758,123 P. 1061, and the cases cited therein, must be sustained, it being there held that, where an order is thus made to set aside a judgment of the district court, the same is not final, and error therefrom will not lie.

The cause is accordingly dismissed.

TURNER, C. J., and WILLIAMS and KANE, JJ., concur; HAYES, J., absent, and not participating.