Opinion
No. 37890.
November 26, 1957. Rehearing Denied February 25, 1958.
Appeal from the District Court of Tulsa County; Leslie Webb, Trial Judge.
Proceeding to obtain a writ of mandamus in which plaintiff's demurrer to defendant's answer was overruled and plaintiff appeals. Appeal dismissed.
Geo. E. Reeves and Geo. P. Striplin, Tulsa, for plaintiff in error.
Darven L. Brown, City Atty., Tulsa, for defendant in error.
This proceeding was instituted by Robert S. Hubbard, hereinafter referred to as plaintiff, who sought the issuance of a writ of mandamus to compel the Board of Trustees of the Police Pension and Retirement System of the City of Tulsa, Oklahoma, hereinafter referred to as defendant, to grant to plaintiff the right to participate in the benefits and protection of the Police Pension and Retirement System of the City of Tulsa, Oklahoma. An alternative writ was issued and defendant filed its answer in response thereto. Plaintiff filed a demurrer to such answer, which was by the court overruled, and plaintiff has brought this appeal from the order overruling such demurrer. Although plaintiff announced in open court that he was standing upon his demurrer, no judgment was entered other than to overrule the demurrer.
A motion to dismiss has been filed for the reason that the order as made cannot be reviewed until there has been a final judgment or order in the case. Such motion to dismiss must be sustained. Exactly the same question was presented in the case of Western Auto Store v. Auto Parts Equipment Co., Okla., 259 P.2d 535, 536, in which an appeal was taken from an order overruling a demurrer to the petition. The appeal was dismissed, and the syllabus in such case is as follows:
"An order overruling a demurrer to the petition is not a final order and where an appeal is taken from such order prior to the entry of a final judgment or order in the cause, such appeal presents nothing properly reviewable by this court."
See also Robertson v. State ex rel. Pinson, 195 Okla. 641, 163 P.2d 975; Oklahoma City-Ada-Atoka Ry. Co. v. Parks, 182 Okla. 598, 78 P.2d 791; Tobly v. Dekinder, 85 Okla. 288, 206 P. 201.
Appeal dismissed.
WELCH, C.J., and HALLEY, JOHNSON, BLACKBIRD, JACKSON and CARLILE, JJ., concur.
CORN, V.C.J., dissents.