Freeman v. Gibson

GORDON, J. In this case defendants below demurred to plaintiff’s petition. This demurrer was overruled; defendants excepted and refused to plead further “at this time.” No further judgment in the case was either rendered or entered. Therefore, under authority of Exchange Oil Co. v. Crews et al., 90 Okla. 245, 216 Pac. 674, and Stebbens et al. v. Edwards. 107 Okla. 139. 231 Pac. 507, the appeal in this case must be dismissed. The defendants in the court below should be required to elect whether they wib stand nrn their demurrer: if they elect to so 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 ap *221 peal shall have been taken to this court. The appeal is denied. All the Justices concur. Note. — See under (1) 3 C- J. P- “1S4; (2) 3 C. J. p. 598.