W. H. Ashley Silk Co. v. Oklahoma Fire Ins. Co. , 33 Okla. 348 ( 1912 )

This is an appeal from an order sustaining a demurrer to the petition. Counsel for defendant in error, in their brief, do not controvert the contention of counsel for plaintiff in error on the merits, but contend that, inasmuch as the appeal was taken prior to the entry of final judgment against the pleader, the same must be dismissed, and cite Grunawalt v. Grunawalt,24 Okla. 756, 104 P. 905, as an authority to that effect. We do not think that case is in point. The case of Wesley et al. v.Diamond et al., 26 Okla. 170, 109 P. 524, is more analogous. In the latter case it was held:

"Under section 6067, Comp. Laws 1909, an order that involves the merits of an action or some part thereof may be reversed, vacated, or modified by the Supreme Court before the final judgment is rendered in the cause in the trial court."

Section 6067, supra, specifically provides that an appeal lies from an order which sustains or overrules a demurrer.

The judgment of the court below must be reversed and the cause remanded, with directions to overrule the demurrer.

TURNER, C. J., and HAYES, WILLIAMS, and DUNN, JJ., concur.