Culp v. State , 109 Okla. 6 ( 1925 )

In this case defendants below demurred to plaintiff's petition. The demurrer was overruled, defendants excepted, but refused to elect to stand on their demurrer. In the journal entry overruling the demurrer we find this language:

"Further orders to plead in said cause will be made or taken in accordance with the judgment of the Supreme Court as will appear from the mandate therein."

No further judgment in the case was either rendered or entered, therefore, under authorities of Exchange Oil Company v. Crews et al., 90 Okla. 245, 216 P. 674, and Stebbins et al. v. Edwards, 107 Okla. 139, 231 P. 507, and the more recent case of Freeman et al. v. Gibson, 107 Okla. 220,232 P. 806, the appeal in this case should be dismissed. The defendants in the court below should be required to elect whether they will stand upon their demurrer; if they elect to stand, judgment should be rendered and entered for plaintiff, and appeal may be then taken by defendants to this court. If defendants shall elect to plead further they may save their exceptions to the action of the court in overruling their demurrer and the question may be properly presented to this court upon the whole case, when final judgment shall have been rendered and appeal shall have been taken to this court. We therefore recommend that this appeal be dismissed.

By the Court: It is so ordered.