Opinion
No. 32571.
November 12, 1946.
(Syllabus.)
APPEAL AND ERROR — Order vacating order of dismissal and reinstating cause not appealable.
An order which vacates an order of dismissal and reinstates the cause is not such an order from which an appeal may be taken prior to final disposition of the cause.
Appeal from District Court, Custer County; W.P. Keen, Judge.
Action by Robert Woodring by his father and next friend, L.R. Woodring, against G.E. Keck. From an order of the trial court vacating and setting aside an order of dismissal, defendant appeals. Dismissed.
Willis Manning, of Fairview, for plaintiff in error.
Arney Barker, of Clinton, Smith Siler, of Oklahoma City, and Bob Minton, of Sayre, for defendant in error.
This action was commenced by Robert Woodring, a minor, by his father and next friend, against G.E. Keck to recover for personal injuries. On November 5, 1945, the cause was dismissed for want of prosecution. On December 21, 1945, plaintiff filed his motion to reinstate the cause, and thereupon the court entered its order on January 21, 1946, setting aside the order dismissing the cause and reinstating the cause. A motion to dismiss the appeal has been filed.
The motion to dismiss the appeal must be sustained. In Haywood v. Pinkey, 112 Okla. 30, 239 P. 456, we stated that an order sustaining a motion to set aside a dismissal of a cause of action and reinstating the same is not a final order and that no appeal can be taken therefrom prior to a final determination of the case. To the same effect see Madison v. Trekell, 179 Okla. 65, 64 P.2d 711.
The appeal is dismissed.
GIBSON, C.J., HURST, V.C.J., and OSBORN, CORN, and DAVISON, JJ., concur.