(5) That it was through no fault of his attorneys that his rights were not presented to the court, and he filed in support thereof the affidavit of W. B. Johnson, his attorney, stating that on the day the case was set for trial he informed the court that plaintiff in error was not present, and that Johnson, as his attorney, had expected the cause to be dismissed, and explained to the court that, inasmuch as certain records that had been requested by the trial judge had been procured, he thought the cause would be dismissed, and that thereupon the court granted a continuance of said cause until the following morning, and in the meantime an effort had been made to reach Mr. Joiner, the plaintiff in error, but was unable to reach him on account of the condition of the telephone, and when on the following morning said cause was called for trial he was led to believe, by conversation of parties interested in said suit, that a compromise had been agreed upon which would protect the interest of his client, and thereupon he withdrew the answer of his client and consented that judgment might be rendered. In opposition thereto one C. B. Cochran was called as a witness for the plaintiff, and he testified that he was attorney for some of the defendants in the cause, and was present at the time judgment was rendered in the case; that on the morning of the 7th of May, 1915, when he (Cochran) came into the courtroom, the said W. B. Johnson, as attorney for C. M. Joiner, stated that, if the rents upon the land involved would be waived, he (Johnson) would permit a judgment to be rendered in said cause against his client, and thereupon he (Cochran) informed Mr. Johnson that he would take the matter up with the attorney for the plaintiff, Mr. Abbott, which he did, and Mr. Abbott accepted the offer thus made by Mr. Johnson, whereupon he informed Mr. Johnson that the rents would be waived, and when court convened the cause was called for trial, and Mr. Johnson in open court announced that it was agreed that plaintiff and his cross-petitioners would waive the question of rents against C. M. Joiner, and that the said C. M. Joiner would not contest the case further; that the above is the only understanding had by him with Mr. Johnson, and that the attorney for the plaintiff, Mr. Abbott, did not discuss the matter with Mr. Johnson at all. And thereupon C. P. Abbott was introduced as a witness for the plaintiff in opposition to said motion, and denied having any conversation whatever with Mr. Johnson or any one else with reference to this matter, save and except with Mr. Cochran as stated above by him. The court, after hearing this evidence, declined to grant to plaintiff in error a new trial, and plaintiff in error has appealed error are sharply controverted, and the trial court, after hearing the evidence, decided the questions of fact adversely to plaintiff in error. And inasmuch as the application was one which addressed itself largely to the discretion of the trial court, under the circumstances we cannot say he abused that discretion, so we cannot interfere with the judgment of the court below. See C., R. I. & P. Ry. Co. v. Maynard, 31 Okl. 685, 122 Pac. 149; Poff v. Lockridge, 22 Okl. 462, 98 Pac. 427; M., K. & T. Ry. Co. v. Ellis, 156 Pac. 226. The judgment of the lower court is therefore affirmed. PER CURIAM. Adopted in whole. (Supreme Court of Oklahoma. Nov. 14, 1916.) Commissioners' Opinion, Division No. 4. Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by John S. Hunter against Lena L. Eberle and another. Judgment for plaintiff, and defendants appeal. Dismissed. George P. Glaze, of Oklahoma City, for plaintiffs in error. John S. Hunter, of Oklahoma City, for defendant in error. EDWARDS, C. This case was appealed to this court, and the appeal was dismissed for want of prosecution. The case now comes on on motion of the defendant in error for a judgment against the sureties on the supersedeas bond under the provisions of chapter 249, Session Laws of 1915. The motion is sustained. for review are taken within the statutory period for reviewing the order. The general rule seems to be that where a party has the right to appeal from an interlocutory order or decree within a limited time and neglects to do so, the right to appeal is lost, and the interlocutory order or decree cannot be reviewed on an appeal from the final judgment, taken after the expiration of the time to appeal from the interlocutory order or decree. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1897; Dec. Dig. 347(2).] 2. APPEAL AND ERROR 347(2) - REVIEW INTERMEDIATE ORDER SUSTAINING OF DE MURRER. - -- Under the authority of Holland v. Beaver, 29 Okl. 115, 116 Pac. 766, Ann. Cas. 1913A, 814, this court will consider the question of whether a district court erred in sustaining the demurrers to a petition, when the petition in error, with case-made attached, is filed in this court within six months after the ruling of the lower court sustaining such demurrers was made, the proceedings in error having also been begun within six months from the date of the final judgment subsequently entered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1897; Dec. Dig. 347(2).] 3. PLEADING ~52(1) — PETITION - SEPARATE CAUSES SEPARATE STATEMENT AND NUMBERING. Where it is sought to set out several causes of action in the same petition, each should constitute a separate count or paragraph, separately stated and numbered. Each paragraph should proceed upon a single definite theory, and should present a complete cause of action, as distinct from others as if it stood alone in the pleadings. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 113; Dec. Dig. ~52(1).] DAVIS, C. This case presents error from the district court of Hughes county. The parties will be referred to as in the trial court. On the 5th day of February, 1915, the trial court sustained demurrers of the various defendants to plaintiffs' amended petition, and granted plaintiffs permission to amend in case they so desired; no time being fixed in which to make such amendment. On the 7th day of June, 1915, no amendment having been made or other pleadings filed, the defendants made a motion to dismiss the action on the ground that defendants had not amended their petition as provided in a former order of the court. Whereupon the plaintiffs announced that they elected to stand upon their first amended petition, and refused to amend the same, and the court then sustained defendants' motion to dismiss, and formally dismissed the action, to all of which the plaintiffs excepted and were granted 90 days to prepare and serve the casemade upon the defendants. The petition in 4. PLEADING 204(2)-DEMURRER-PETITION error and case-made, with stipulation waiv-SEVERAL CAUSES OF ACTION. It is a well-established rule of this court that where a general demurrer is filed to a petition as a whole, if any paragraph of the pleading is good and states a cause of action, the demurrer should be overruled. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 486, 487; Dec. Dig. 204(2).] 5. PLEADING 216(2)—DEMURRER TO PLEAD ING. In considering the defendants' demurrers to the seven separate causes of action, we are not confined to the allegations contained in the particular paragraph or subdivision of the petition, but may supplement such allegations found in the particular paragraphs by other paragraphs, containing general allegations applicable alike to the different causes of action. This we could not do if the separate causes of action were separately stated and numbered, unless there was found in the defective paragraph some reference to other allegations in other paragraphs of the petition. [Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 537, 538; Dec. Dig. 216(2).] 6. SUFFICIENCY OF PETITION-DEMURRER NOT SUSTAINABLE. It is urged that the petition as a whole did not state a cause of action; hence the court erred in overruling the demurrer to said petition. In view of the conclusion already reached, this position is untenable. Construing the petition as a whole, it sufficiently states a cause of action, sufficient to withstand the attack by general de murrers. Commissioners' Opinion, Division No. 4. Error from District Court, Hughes County; Tom D. McKeown, Judge. ing summons, were filed in the Supreme Court on the 4th day of August, 1915. The defendants raise the preliminary question that the appeal should be dismissed upon the ground that, the demurrers to the amended petition having been sustained and plaintiffs having refused to amend, with the expiration of 15 days from the date the ruling was made, jurisdiction to make and serve review was lost and could not be restored. a case that should preserve such ruling for [1] The preliminary question thus presented is, Where a demurrer to the petition is sustained, must the party against whom the adverse ruling is made, in order to procure a review of it by means of a case-made, within 15 days from that time either serve a case-made or procure an extension of time for so doing, or may he wait until a final judgment is rendered against him and then by means of a case-made served within the statutory period or period of extension, if any, from that date institute proceedings in error for the reversal of the judgment, and then have the court pass upon the question whether the sustaining of the demurrer was error? The question, of course, is predicated upon the supposition, as in the case at bar, that the party declined to amend, but the order of dismissal was not made until a later date. Section 5236, Rev. Laws Okl. 1910, makes the sustaining of a demurrer a final For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 90 160 PACIFIC REPORTER order from which an appeal would immediately lie to the Supreme Court, but if the party to the adverse ruling should elect to amend, then the error, if any, will be deemed as waived and no appeal would lie. While a few states hold to the contrary, we believe the correct rule is to be found in 2 R. C. L. § 160, which is as follows: "The great weight of authority is in favor of the rule that where the statute gives the right of appeal from an intermediate order, decision, decree, etc., the party against whom the appealable order is made during the progress of the litigation has the option to institute proceedings for review at once, or to wait until final judgment, and at that time question the correctness of the prior order, providing that the proceedings for review are taken within the statutory period * The general for reviewing the order. rule seems to be that where a party has the right to appeal from an interlocutory order or decree within a limited time and neglects to do so, the right to appeal is lost, and the interlocutory order or decree cannot be reviewed on an appeal from the final judgment, taken after the expiration of the time to appeal from the interlocutory order or decree." Our statute upon appeal is the same as the Kansas statute on that subject, with the exception that there one year is allowed in which to perfect the appeal instead of six months, as in this jurisdiction, and in the case of Bates v. Lyman, 35 Kan. 634, 12 Pac. 33, it is said: "Where a petition in error is filed in the Supreme Court within one year after the making of an order overruling a motion for a new trial, the proceeding is in time for a review of all the rulings of the court made during the trial, and excepted to at the time, which are referred to in such motion." Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423; White v. Atchison, Topeka & Santa Fé Railway Co., 74 Kan. 778, 88 Pac. 54, 11 Ann. Cas. 550; and note. The décisions of our own court are in accord with the above holdings as shown by the following authorities: Doorley v. Buford & George Mfg. Co., 5 Okl. 594, 49 Pac. 936; Buxton v. Alton-Dawson Mer. Co., 18 Okl. 287, 90 Pac. 19; Bellamy v. Washita Valley Telephone Co. et al., 25 Okl. 792, 108 Pac. 389; Holland v. Beaver, 29 Okl. 115, 116 Pac. 766, Ann. Cas. 1913A, 814; Reynolds v. Phipps et al., 31 Okl. 788, 123 Pac. 1125; Rhome Milling Co. v. Farmers' & Merchants' Nat. Bank of Hobart, 40 Okl. 131, 136 Pac. 1095. tiffs declined to plead further, and elected to "Comes now James A. Chapman, one of the defendants herein, and separately demurs to the petition of plaintiffs filed herein and for reason says: "(1) Said petition as a whole does not constitute a cause of action in favor of plaintiffs and against the defendant James A. Chapman. "(2) The first cause of action as set forth in plaintiffs' petition does not constitute a cause fendant James A. Chapman. of action in favor of plaintiffs and against de "(3) The second cause of action as set forth in plaintiffs' petition does not constitute a cause of ant James A. Chapman. action in favor of plaintiffs and against defend "(4) The third cause of action as set forth in plaintiffs' petition does not constitute a cause of action in favor of plaintiffs and against defendant James A. Chapman. "(5) The fourth cause of action as set forth in plaintiffs' petition does not constitute a cause of action in favor of plaintiffs and against defendant James A. Chapman. "(6) The fifth cause of action as set forth in plaintiffs' petition does not constitute a cause of action in favor of plaintiffs and against defendant James A. Chapman. Therefore we hold that where a demurrer to the petition is sustained and the plaintiff excepts and elects to stand on his petition, he has the option to institute proceedings in error at once or wait until final judgment, "(7) The sixth cause of action as set forth in plaintiffs' petition does not constitute a cause of dismissing his action, is entered, and upon appeal from such dismissal question the cor-action in favor of plaintiffs and against defendrectness of the order sustaining the demur- ant James A. Chapman. rer, provided the appeal from the final judgment is taken within the statutory period of six months from the time the demurrer was sustained. [2] The several demurrers were sustained to the amended petition of plaintiffs, which "(8) The seventh cause of action as set forth cause of action in favor of plaintiffs and against in plaintiffs' petition does not constitute a defendant James A. Chapman. "Wherefore said defendant prays that this demurrer be sustained." The five assignments of error contained in the petition in error are as follows: "First Assignment of Error. Because the court erred in sustaining said motion of the defendants in error to require the plaintiffs below to separately state and number their different causes of action. "Second Assignment of Error. Because the court erred in sustaining each of the demurrers of said defendants in error to the petition and amended petition of the plaintiffs in error filed in this cause. "Third Assignment of Error. Because the court erred in sustaining the motion of the defendants in error to dismiss said cause for want of prosecution, and because not amended in accordance with prior orders, and in dismissing said cause, and thereby fully sustaining said motion of said defendants in error and defeating the causes of action of the plaintiffs in error thus presented in their petition and amended petition. Am. St. Rep. 737; Hurst v. Sawyer, 2 Okl. 470, 37 Pac. 817; Emmerson v. Botkin, 26 Okl. 218, 109 Pac. 531, 29 L. R. A. (N. S.) 786, 138 Am. St. Rep. 953; W. E. Berry and J. H. McDonald v. Geiser Manufacturing Co., 15 Okl. 364, 85 Pac. 699; Noble Whiteacre v. Clara E. Nichols, 17 Okl. 387, 87 Pac. 865; Munn v. Taulman, 1 Kan. 254, 81 Am. Dec. 508; Erwin v. Parham, 12 How. 197, 13 L. Ed. 952; Maxwell v. Stewart, 21 Wall. 71 and 22 Wall. 77, 22 L. Ed. 1565; Ardmore State Bank v. Mason, 30 Okl. 568, 120 Pac. 1080, 39 L. R. A. (N. S.) 292 Harrill v. Weer, 26 Okl. 313, 109 Pac. 539; Owen et al. v. City of Tulsa et al., 27 Okl. 264, 111 Pac. 320; Hanenkratt v. Hamil, 10 Okl. 219, 61 Pac. 1050; Savage et al. v. Dinkler, 12 Okl. 463, 72 Pac. 366. "In considering the defendant's demurrers to the six separate causes of action, we are not confined to the allegations contained in the particular paragraph or subdivision of the petition, but may supplement such allegations found in the particular paragraphs by other paragraphs containing general allegations applicable alike to the different causes of action. This we could not do if the separate causes of action were separately stated and numbered, unless there was found in the defective paragraph some reference to other allegations in other paragraphs of the petition. "Fourth Assignment of Error. Because said orders, judgments, and decrees of the court are not sustained by the law, but are contrary to the law, and especially the respective acts of Congress set forth and relied upon in said petition and amended petition of the plaintiff in error, and which said acts of Congress are here again referred to and relied upon by said plaintiffs in error to sustain their rights and interests in and to said lands thus allotted to said Amos Chupco and to the heirs of said Katie Chupco, mentioned "It is urged that the petition as a whole did and described in said petition and amended peti- not state a cause of action; hence the court tion, and the attention of the court is hereby erred in overruling the demurrer to said petition. specifically directed to each and to every act of In view of the conclusion already reached, this Congress and section thereof mentioned and re-position is untenable. Construing the petition ferred to therein, as fully as if the same was hereby specifically mentioned and set forth in this assignment, as completely as in said petition and amended petition. "Fifth Assignment of Error. Because of numerous errors of law committed on the trial of said cause and duly excepted to by the plaintiffs in error." [3] We do not think that there is any reversible error on the part of the trial court under the first assignment of error. Section 4739, Rev. Laws Okl. 1910. "Where it is sought to set out several causes of action in the same petition, each should constitute a separate count or paragraph, separate; ly stated and numbered. Each paragraph should proceed upon a single definite theory, and should present a complete cause of action, as distinct from others as if it stood alone in the pleadings. Sutherland on Pl. & Pr. §§ 193, 200; 1 Chitty's Pleading, 413; Watson v. San Francisco, etc., Ry. Co., 41 Cal. 17; Moore v. Halliday, 43 Or. 243, 2 Pac. 801, 99 Am. St. Rep. 724." First Nat. Bank of Tishomingo v. Ingle, 37 Okl, 276, 132 Pac. S95. [4-6] As to the second assignment of error, supra, it will be noticed that each of said demurrers is a general demurrer to the amended petition as a whole, and a general demurrer to each of the separately stated and numbered causes of action therein pleaded and set forth, seven causes of action in all. as a whole, it sufficiently states, not only a cause of action, but six different causes of action." First Nat. Bank of Tishomingo v. Ingle, 37 Okl. 276, 132 Pac. 895. In the light of these authorities, and after a careful examination of the amended petition, we are of the opinion that the same does state a cause of action against each of said defendants, interposing against it a separate general demurrer, and that the causes of action, separately stated and numbered therein, are each sufficient as against the separate general demurrers of said defendants leveled against it. The amended petition in this case, after stating the first cause of action in five separate paragraphs, begins the second cause of action as follows: "Second Cause of Action. And for their second cause of action herein against said defendants, these plaintiffs hereby make paragraphs 1 to 5, inclusive, of their first cause of action a part of this second cause of action as full and completely as if said paragraphs, and each of them, were again set forth herein in hæc verba, and ask that the same be read and considered herewith as a part hereof; and, in addition to the matters set forth in said paragraphs, these complainants further charge and aver." Plaintiffs' third cause of action in said amended petition begins as follows: "And for their third cause of action in this case, these plaintiffs make paragraphs 1 to 5 inclusive, of said first cause of action a part of this third cause of action as completely as if it was again set forth in hæc verba, and ask that the same be read and considered herewith as a part hereof; and in addition thereto plaintiffs further charge and aver." 1 "It is a well-established rule of this court that where a general demurrer is filed to a petition as a whole, if any paragraph of the pleading is good and states a cause of action, the demurrer should be overruled. Hurst v. Sawyer, 2 Okl. 470, 37 Pac. 817; City of Guthrie v. Harvey Lumber Co., 5 Okl. 774, 50 Pac. 84. There can be no doubt that the petition states a cause of action for the property set forth in that paragraph in which the plaintiff claims a general ownership, and for that reason there was no "And for their fourth cause of action herein error in overruling the demurrer." Cockrell et complainants make paragraphs 1 to 5, inclusive, al. v. Schmitt, 20 Okl. 207, 94 Pac. 521, 129 of the first cause of action herein stated a part Plaintiffs' fourth cause of action begins as follows: RE hereof, and ask that it be read and considered [3. JUSTICES OF THE PEACE 141(2) VIEW OF DECISIONS-JURISDICTION OF AP. Plaintiffs' fifth cause of action begins as follows: "And for their fifth cause of action herein complainants make paragraphs 1 to 5, inclusive, of the first cause of action herein stated a part of this cause of action, and ask that the same be read and considered herewith as part hereof; and in addition thereto further charge and aver.' Plaintiffs' sixth cause of action begins as follows: "And for their sixth cause of action herein these plaintiffs refer to paragraph 1 to 5 inclusive, of their first cause of action herein stated, and ask that the same be read and considered herewith as part hereof; and in addition thereto these plaintiffs further charge and aver." And plaintiffs' seventh cause of action begins as follows: "And for their seventh cause of action herein, your complainants make paragraphs 1 to 5, inclusive, of the first cause of action herein stated a part of this cause of action, and ask that the same be read and considered herewith as a part hereof as fully and completely as if said paragraphs were again herein set forth in hæc verba; and in addition thereto your complainants further charge and aver." For the reasons stated herein we are of the opinion that the trial court committed reversible error in sustaining each of the separate demurrers of said defendants to plaintiffs' amended petition, and in rendering final judgment dismissing plaintiffs' action. It is therefore ordered that the cause be reversed and remanded, with directions to the trial court to set aside said judgment of dismissal and to reinstate said action in said court, and to overrule each of said demurrers to said amended petition, and to proceed to further hear and determine said cause according to law. PER CURIAM. Adopted in whole. (61 Okl. 123) MATHENY v. BANK OF NASHVILLE. (No. 6525.) The jurisdiction of the county court upon appeal from a replevin action in the justice's court must be determined by the laws in force applicable to the jurisdiction of a justice's court, as the county court upon appeal can acquire no greater jurisdiction than that possessed by the justice's court. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 472; Dec. Dig. 141(2); Courts, Cent. Dig. §§ 560, 669.] RE4. JUSTICES OF THE PEACE 141(5) VIEW OF DECISIONS-JURISDICTION OF APPELLATE COURT. Remittitur made in the county court so as to reduce the amount involved within the ju risdiction of a justice of the peace cannot invest the county court with jurisdiction upon an appeal from a justice's court, where the amount involved in said action exceeded the jurisdiction of the justice's court. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 475: Dec. Dig. 141(5); Courts, Cent. Dig. §§ 560, 669.] Commissioners' Opinion, Division No. 3. Error from County Court, Alfalfa County; F. M. Gustin, Judge. Action by the Bank of Nashville against P. M. Matheny. From a judgment for plaintiff, defendant brings error. Dismissed. Titus & Talbot, of Cherokee, for plaintiff in error. Webster Wilder, of Cherokee, for defendant in error. HOOKER, C. In January, 1912, the Bank of Nashville commenced this action of replevin in the city of Cherokee, Alfalfa county, Okl., against plaintiff in error, P. M. Matheny, whereby it sought to recover the possession of certain personal property, or if the same could not be had, the value thereof in the sum of $130, and for the further sum of $75 damages and costs.. Trial was had in the justice court, and judgment rendered in favor of the bank and against the plaintiff in error, from which an appeal was had to the county court of Alfalfa county, and on the 20th day of October, 1913, this cause was tried in said court, and judgment rendered in favor of the bank and against (Supreme Court of Oklahoma. Sept. 26, 1916. plaintiff in error for a return of the property Rehearing Denied Oct. 17, 1916.) (Syllabus by the Court.) 1. JUSTICES OF THE PEACE 43(3)-JURISDICTION AMOUNT IN CONTROVERSY. In an action in replevin in the justice's court, where the amount in controversy exceeds $200, the court has no jurisdiction thereof. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 75, 153; Dec. Dig. 43(3).] 2. JUSTICES OF THE PEACE 44(6)-JURISDIC TION AMOUNT IN CONTROVERSY. In determining the jurisdiction of the justice's court in an action of replevin, the value of the property and the damages sought to be recovered for its detention must be considered together, as fixing the amount in controversy. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. § 163; Dec. Dig. 44(6).] or its value in the sum of $130. There are several reasons assigned why the judgment in this case should be reversed; but, under the view that we take, it is oily necessary to consider one. It appears from an examination of the record before us that the plaintiff instituted this action in the justice's court to recover the possession of personal property or its value in the sum of $130, and for the further sum of $75 damages, thus making the amount in controversy in this action $205. When the judgment was rendered in the lower court. an appeal was had to the county court, where the cause was tried de novo, and at the be ginning of the trial the plaintiff in said action attempted to remit or disclaim the damages |