Laramour v. Campbell

PER CURIAM.

On August 4, 1915, plaintiff, Wm. Laramour, sued defendant, Don Campbell, in damages for failure to perform a parol contract. Defendant demurred to the petition, which demurrer was overruled, whereupon, defendant electing to plead no further and to stand upon his demurrer, judgment was rendered in favor of plaintiff for. the amount claimed and defendant granted time within which to perfect an appeal to the Supreme Court. Thereafter, on January 20, 1916, defendant filed a motion to vacate and set aside said judgment upon certain jurisdictional grounds, to which plaintiff filed his answer. This motion was treated by the court as a petition to vacate the judgment, and, upon hearing thereof, the court set aside the judgment theretofore rendered in favor of plaintiff. It is from the order vacating and setting aside the judgment rendered in favor of plaintiff that this appeal is prosecuted.

It is urged by defendant that the. appeal should be dismissed, upon the ground that the order of the court vacating and setting aside said judgment is not a final order from which an appeal lies. This contention must be sustained. It is well settled in this jurisdiction that an order vacating and setting aside a judgment is not a final order within the contemplation of Rev. Laws 1910, secs. 5235, 5236, and that no appeal lies therefrom. Town of Byars v. Sprouls, 24 Okla. 299 , 103 Pac. 1038 ; Smith v. Whitlow et al., 31 Okla. 758 , 123 Pac. 1061 ; Berger Mfg. Co. v. School Dist. No. 10, 44 Okla. 436 , 144 Pac. 1023 .

The appeal is accordingly dismissed.