Gilliam v. Juccion

GIBSON, J. Plaintiffs brought an action to cancel a deed issued by the county commissioners of Tulsa county. The cause was tried to the court upon issues made by the pleadings and at the end of the evidence offered by plaintiffs, defendants demurred to the evidence. The court overruled the demurrer and defendants elected to stand upon the demurrer, whereupon judgment was entered for the plaintiffs canceling the deed. No motion for new trial was filed. Defendants appeal from the order and judgment canceling the deed. A motion to dismiss has been filed for the reason that a ruling upon a demurrer to the evidence cannot be reviewed until a motion for new trial has been filed and determined. The motion must be sustained. Ardmore Oil & Milling Co. v. Doggett Grain Co., 32 Okla. 280, 122 P. 241; Federal Refining Co. et al. v. Fortuna Oil Co., 77 Okla. 23, 185 P. 1080; Hunt v. Tribune Publishing Co. et al., 172 Okla. 139, 44 P. 2d 889. In Federal Refining Co. et al. v. Fortuna Oil Co., supra, we said: “Where a party interposes a demurrer to evidence which is overruled, stands upon the demurrer, and judgment is rendered against him, a motion for a new trial must be filed in order for the Supreme Court to review the evidence adduced in the trial court.” Appeal dismissed.