Opinion
No. 684
Opinion Filed September 14, 1909.
APPEAL AND ERROR — Appealable Order — "Final Order." An order made, vacating a judgment for the purpose of permitting a party against whom said judgment is rendered to prosecute or defend, is interlocutory, and not a "final order," from which an appeal will lie to the Supreme Court.
(Syllabus by the Court.)
Error from District Court, Garvin County; R. McMillan, Judge.
Action by J. M. Maddle against R. C. Beavers. From an order vacating judgment against defendant, plaintiff brings error. Dismissed.
O. W. Patchell and Marion Henderson, for plaintiff in error.
J. B. Thompson, for defendant in error.
The foregoing case presents error from the district court of Garvin county. From the petition in error it appears that on the 14th day of September, 1908, the plaintiff in error secured an order vacating a judgment obtained by defendant in error at a former term of the district court in that county. The plaintiff in error, who was plaintiff below in that court, filed his verified motion to set aside the said judgment, to enable him to make his defense, which, on being heard by the court was granted, and the judgment vacated and set aside. The defendant thereupon moved the court for a new trial of the issues made, on the motion, and on it being denied, has attempted to bring the case to this court for review.
Counsel for defendant has filed a motion to dismiss the petition in error, for the reason that the order appealed from was not final, but was interlocutory, and that no appeal would lie to this court therefrom. This motion must be sustained, upon the authority of the case of Town of Byars v. Sprouls, ante, p. 299, 103 P. 1038, an opinion delivered by this court July 13, 1909, and the case of Moody Company v. Freeman Williams, ante, p. 701, 104 P. 30, delivered at this term of court.
All the Justices concur.