Clapper v. Putnam Co. , 70 Okla. 99 ( 1916 )

Counsel asserts in his petition for rehearing that two of the errors assigned were upon the order vacating the default judgment and striking put certain portions of the petition, that such rulings of the trial court were not appealable orders, and that therefore they could only be raised after judgment, and that the motion for new trial was proper to obtain a review of such judgment. We have held that this class of orders are not appealable (Town of Byars v. Sprouls,24 Okla. 299, 103 P. 1038; Aetna Bldg. Loan Ass'n v. Williams, 26) Okla. 191, 108 P. 1100), and errors predicated upon them are only reviewable in connection with the final judgment when an appeal is properly prosecuted from such final judgment (City of Mangum v. Heatly, 49 Okla. 730, 164 P. 528). But under our Code certain orders of the trial court, not final judgments, are appealable. If the order, or even the final judgment, is based solely upon a question of law, and no issue of fact has been determined, the motion for a new trial is not necessary, and if the appeal is from a final judgment, the errors upon the interlocutory orders may be assigned. If the final judgment is based upon a verdict, report, or decision of a question of fact, then the motion for new trial is proper, the time for appeal does not begin to run until such motion is overruled, and the interlocutory orders may be assigned as error in connection with the errors assigned upon the final judgment. Such was the case in Spaulding v. Polley, 28 Okla. 764, 115 P. 864, cited by plaintiffs in error. Our holding in this case is not that plaintiff did not have a right of appeal but that he did not exercise that right in time. His motion for a new trial was not necessary to review the ruling of which he complains, since that ruling was based purely upon a question of law. Not being necessary, the motion for new trial did not operate to extend the time for appeal.

It is true that this court has held that a ruling upon a demurrer to the evidence must be preserved by motion for new trial (Planters' Ins. Co. v. Rose, 27 Okla. 530, 112 P. 966, Tyler v. Tyler, 44 Okla. 411, 144 P. 1023, and others) and that perhaps logically the reasoning of the instant case, and of the cases just cited, is not in accord. It is sufficient to say that, the doctrine of the cases cited having become a settled rule of practice, we do not care to overrule them, but we are not disposed to extend the doctrine thus enunciated to cases such as the one at bar.

The opinion filed herein is adhered to, and the petition for rehearing denied.

By the Court: It is so ordered.