Legal Opinion

Campbell v. Thornburgh

Supreme Court of Oklahoma

Decided January 11, 1916No. 6622PublishedCited by 12 opinions

Error from County Court, Okmulgee County; Mark L. Bozart, Judge. Action by W. W. Campbell and others against Wright Thornburgh and others. Judgment for defendants, and plaintiffs bring error. A motion to dismiss this appeal was filed on the ground that after a demurrer to the petition was sustained the defendant took time to plead over. The record shows two orders.

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Error from County Court, Okmulgee County; Mark L. Bozart, Judge. Action by W. W. Campbell and others against Wright Thornburgh and others. Judgment for defendants, and plaintiffs bring error. A motion to dismiss this appeal was filed on the ground that after a demurrer to the petition was sustained the defendant took time to plead over. The record shows two orders. The first, made on the 14th day of May, 1914, recites: “This cause coming on to be heard on this 14th day of May, 1914, on a demurrer of the defendants to the petition of the plaintiff heretofore filed, and after hearing argument…

1Opinion of the Court

In Berry v. Barton, 12 Okla. 221, 71 P. 1074, 66 L. R. A. 513, it is specially held that, where a demurrer is sustained and time is given to amend the petition, error in sustaining the demurrer is waived. In the opinion it is said:

"In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading held to be defective, and not amend. * * * plead over, and therefore they are in a position to urge But it is argued that in this case the defendants did not as error the sustaining of the demurrer. This position cannot be sustained. It is true that…

2Cases cited4 opinions

  1. Berry and Berry v. BartonSupreme Court of Oklahoma · 1902
  2. Pacific Mut. Life Ins. Co. of Cal. v. O'NeilSupreme Court of Oklahoma · 1913
  3. Jenkins v. Oklahoma CitySupreme Court of Oklahoma · 1910
  4. Chidsey v. EllisSupreme Court of Oklahoma · 1911

3Cited by12 opinions

  1. Schuber v. McDuffeeSupreme Court of Oklahoma · 1917
  2. Cates v. MilesSupreme Court of Oklahoma · 1917
  3. Bank of Buchanan County v. PriestlySupreme Court of Oklahoma · 1922
  4. Points v. Oklahoma Publishing Co.Supreme Court of Oklahoma · 1983
  5. State Ex Rel. Freeling v. MartinSupreme Court of Oklahoma · 1917

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