Opinion
No. 34592.
March 27, 1951. Rehearing Denied July 10, 1951.
(Syllabus.)
APPEAL AND ERROR — Order striking from case answer and cross-petition of intervener, but leaving issues to be tried, held not appealable prior to final determination of cause. An order of the trial court which strikes from the case an answer and cross-petition of an intervener, but leaves for trial the issues of the interest of the plaintiffs and said intervener against the principal defendant, is not a final order and cannot be brought to this court for a determination of errors alleged in striking the answer and cross-petition except on appeal from the final order and judgment made in the case.
Appeal from District Court, Oklahoma County; Glen O. Morris, Judge.
Action by James A. Lathrop et al. against the Consolidated Gas Utilities Corporation, in which Mrs. J.M. Dennis intervened. From an order of the trial court striking her answer and cross-petition, Mrs. J.M. Dennis appeals. Dismissed.
Gilliland, Ogden, Withington, Shirk Vaught, Oklahoma City, for plaintiff in error.
Charles L. Orr, Oklahoma City, for defendant in error.
Plaintiffs, James A. Lathrop, Henry A. Lathrop, Nannie J. Buck and Lucy K. Schwartz, filed an action against the Consolidated Gas Utilities Corporation alleging that they were owners of a certain 12 1/2 percent interest in the production of gas from real property. Mrs. J.M. Dennis, having made due application therefor and being permitted by proper order of the court, filed a petition in intervention alleging a one-third interest in the 12 1/2 percent interest claimed by plaintiffs. R.A. Lathrop also filed a petition in intervention. R.A. Lathrop thereafter assigned his interest to plaintiffs, and the action continued as to the original plaintiffs and the Consolidated Gas Utilities Corporation and Mrs. J.M. Dennis as intervener. Issues were made upon the petition filed by Mrs. J.M. Dennis, the petition of the original plaintiffs and the answer of Consolidated Gas Utilities Corporation.
Thereafter Mrs. J.M. Dennis filed an amendment to the petition in intervention in which she sought to recover expenses and attorney fees and damages for alleged wrongful bringing of the action. James A. Lathrop et al., as original plaintiffs, filed a motion to strike the answer and cross-petition denominated an amendment to the answer, and on the 27th day of January, 1950, the court sustained the motion to strike. On the same date the court ordered the two-thirds interest in certain moneys held for the entire 12 1/2 percent interest paid to the plaintiffs. Mrs. J.M. Dennis appeals from these orders.
A motion to dismiss has been filed for the reason that the appeal is not from a final order or judgment of the trial court and that the case is still pending in the trial court for disposition on the merits. The motion to dismiss must be sustained. There is no contest between Mrs. J.M. Dennis and the plaintiffs as to the two-thirds interest in the 12 1/2 percent interest and it admittedly belongs to the plaintiffs. The appeal from the order striking from the case the answer and cross-petition of Mrs. J.M. Dennis is not a final order. Attaway v. Watkins, 171 Okla. 102, 41 P.2d 914; Oklahoma City Land Development Co. v. Patterson, 73 Okla. 234, 175 P. 934.
In Oklahoma City Land Development Co. v. Patterson, supra, it is stated:
"An appeal does not lie to this court from an intermediate or interlocutory order made during the pendency of an action, which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits, unless the appeal sought to be taken comes within some one of the special orders from which an appeal is authorized by statute prior to final judgment in the main action."
In Attaway v. Watkins, supra, it is stated:
"Under section 528, O.S. 1931, which provides that an appeal may be taken from an order which involves the merits of the action or some part thereof, an appeal does not lie to this court prior to a final determination of the cause, from an intermediate or interlocutory order which strikes from the answer an alleged material defense, but which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits."
In Attaway v. Watkins, supra, this court specifically overruled Wesley v. Diamond, 26 Okla. 170, 109 P. 524, which held to the contrary.
Appeal dismissed.
LUTTRELL, V.C.J., and CORN, DAVISON, HALLEY, and O'NEAL, JJ., concur. ARNOLD, C.J., and WELCH and GIBSON, JJ., dissent.