This is an action commenced May 21, 1928, by defendant in error, herein referred to as plaintiff, against plaintiffs in error, herein referred to as defendants, to recover upon 21 promissory notes executed by defendants July 28, 1925, payable to plaintiffs or order.
The petition is in the usual form and contains an allegation:
"Plaintiff alleges that consideration for said notes was the sale by the plaintiff to the defendants of two 1 1/2-2 ton trucks; that the notes were not given for borrowed money; that there is no usury on said notes and the usury laws of the state of Oklahoma have not been broken by this transaction."
Defendants filed an answer and counterclaim. The answer admitted the execution and delivery of the notes and denied that plaintiff was owed anything thereon. The counterclaim, in substance, alleges that the notes sued upon were given as part of the purchase price of two trucks as alleged in the petition, and that defendants executed *Page 68 said notes by reason of certain false and fraudulent representations made by plaintiff's agent:
"That when Jones, agent for the plaintiff, of Dallas, Tex., came to the defendants to sell them the trucks, the defendants asked him about getting parts for said trucks, in case of a breakdown, and said agent told the defendants that they carried the parts to said trucks at Dallas, Tex., and they could get any repairs they might need within twelve hours. That defendants told him that they did not want the trucks unless they could get parts immediately; that they were engaged in oil field hauling, and that they could not afford to wait for parts to be shipped from distant points and lose several days' work. That the agent, Jones, assured them many times they could get all their parts at Dallas at any time, because they carried the, parts at all times."
Damages were prayed for on account of the alleged false and fraudulent representations.
Plaintiff demurred to the counterclaim upon the ground:
"That the same does not state facts sufficient in law to constitute a counterclaim for the reason that it is based upon prior parol negotiations and representations not embraced in the subsequent written contract."
The demurrer to the counterclaim was sustained by an order signed by the trial judge October 5, 1928. The minutes of the court clerk show that the court on its own motion, on the next day, set aside the order sustaining the demurrer. On January 18, 1929, the trial judge signed another journal entry sustaining the demurrer to the counterclaim. At neither time did defendant ask leave to amend their answer or counterclaim. Without further pleadings being filed the cause was set for trial April 11, 1929, and a jury being waived, plaintiff introduced a part of his evidence, whereupon the cause was passed until April 16th, at which time the notes being introduced in evidence, plaintiff rested its case, and defendants demurred to the evidence. Demurrer was overruled, and defendants offered no evidence, and judgment was rendered for plaintiff for the amount sued for.
The only question presented as error is the action of the trial court in sustaining the demurrer to defendants' counterclaim. The last sentence in the reply brief of defendant is:
"It is sufficient, we think, to state that the only assignment of error relied upon by the plaintiff in error in this case is the first one to wit, that the court erred in sustaining the demurrer to the counterclaim contained in the answer of the plaintiff in error."
This being the case, a question then arises which is not raised or suggested by either party, but which goes directly to the jurisdiction of this court to consider the error mentioned.
In Howard v. Arkansaw, 59 Okla. 206, 158 P. 437, it was held that the Supreme Court should examine into its jurisdiction, though no question be raised in respect thereto by either party.
This court, in Jones v. Toomey, 115 Okla. 169, 241 P. 1105, quotes with approval from 3 C. J. 372:
"It is the duty of the court to determine the question of its jurisdiction of its own motion, and it will not ignore a want of jurisdiction because the question is not raised or discussed by either party."
The order sustaining the demurrer was finally entered January 18, 1929. The petition in error with case-made attached was not filed in this court until October 29, 1929, more than nine months after the order complained of was entered. It has frequently been held by this court that it cannot determine whether the district court erred in sustaining a demurrer to a petition when the petition in error and case-made are filed more than six months after the ruling, though within six months from refusal of a new trial. Morrison v. Green Comm. Co.,61 Okla. 287, 161 P. 218; Guess v. Reed, 49 Okla. 124, 152 P. 399. A like rule was applied before the amendment reducing the time for commencement of proceedings in error from one year to six months. Holland v. Beaver, 29 Okla. 115, 116 P. 766; Reynolds v. Phipps, 31 Okla. 788, 123 P. 1125; Rhome Mill. Co. v. Farmers Merchants Bank, 40 Okla. 131, 136 P. 1095.
In Western Union Telegraph Co. v. Dobyns, 41 Okla. 403,138 P. 570, it was held that an appeal from an order sustaining a demurrer must be taken within one year after the order is made.
The reason for the difference in the rule where a demurrer is sustained and where the demurrer is overruled is stated in the body of the opinion in the latter case as follows:
"Counsel for plaintiff contend that we, are without jurisdiction to examine the foregoing assignments of error as raised by the telegraph company, for that, the points involved having been raised by it in the trial court by demurrer and the demurrer having *Page 69 been overruled, the appeal should have been prosecuted from the order of the trial court in overruling the demurrer and brought to this court within one year from the day the same was overruled, which was not done; but this is not the correct rule. Had the demurrer been sustained, instead of being overruled, the foregoing rule would have obtained, for, when a court sustains a demurrer, the effect of such ruling is to eliminate from the case all further consideration of the point involved, but, when the demurrer is overruled, the fault of the pleading, or the objectionable matter, sought to be eliminated, is retained in the case and affects its whole subsequent history, and the error committed by the court can be examined when the whole case is considered an appeal, provided the appeal in the case proper is seasonable * * * whereas, if the matter attacked by the demurrer is eliminated from the case by sustaining the demurrer, the error must be cured by appeal direct from the order sustaining said demurrer and within the statutory time allowed for appeal."
In the instant case the answer of defendant stated no defense to plaintiff's petition, for it admitted the execution and delivery of the note sued upon. The only matter relied upon by defendant and attacked by the demurrer was eliminated from the case by the order sustaining the demurrer entered January 19, 1929, if not by the order entered October 5, 1928. In either case the order was entered more than six months before the petition in error and case-made were filed in this court. It follows that this court is without jurisdiction to determine the only question raised, and the appeal should be, and is hereby dismissed.
LESTER, C. J., and HEFNER, CULLISON, ANDREWS, McNEILL, and KORNEGAY, JJ., concur. CLARK, V. C. J., and SWINDALL, J., absent.
On Petition for Rehearing.