¶1(dissenting). The holding of the court in the majority opinion in this case that the finding by the trial court that a partnership existed between plaintiff and defendants, which finding was necessary to justify the court in requiring an accounting between the parties, is a final order and appealable, is to my mind of such importance that I feel justified in expressing my views. The decision on this point embodied in the majority opinion has farreaching consequences, in that it will tend to produce uncertainty in the minds of lawyers as to what constitutes a final and appealable order or judgment as distinguished from one which is merely interlocutory, and will result in numerous appeals to this court from orders which have not heretofore been considered final orders.
¶2By our previous decisions the distinction between a final order or final judgment, from which an appeal lies to this court, and an interlocutory order or a judgment lacking finality, which are not appealable, has been fairly well established and preserved. The leading case on this subject is Wells v. Shrivers, 81 Okla. 108, 197 P. 460. In that case the court, in an exhaustive opinion in which many authorities are cited and analyzed, held that a finding or order by the trial court that a partnership existed between plaintiff and defendants in certain oil and gas leases did not constitute a final order and was not ap-pealable. In that case, as in the instant case, the plaintiff sought a dissolution of the partnership and an accounting, and the court, on April 3, 1914, found and adjudged that each of the parties owned a one-third interest in the leases and in the profits, and that an accounting should be had before a referee appointed by the court. Later the referee was appointed, and on July 20, 1918, the trial court confirmed the report of the referee, and rendered final judgment in the case. On appeal from that judgment it was contended that the judgment rendered in 1914 was a final judgment, from which an appeal had not been taken in time, and that the court was without authority to review on appeal from the judgment rendered in 1918 anything decided by the court in the judgment of 1914. In that case we said that only one judgment could be rendered in an action; that neither the findings of fact nor the conclusions of law constituted the judgment, and that to be a judgment the court must decide all issues raised by the pleadings, leaving nothing to be done but to execute the judgment. We further said that the fact that the journal entry of April 4, 1914, reciting that the judgment was interlocutory, was not at all conclusive that it was interlocutory, but that the test was whether it determined all the merits of the action and fixed all the rights of the parties.
¶3That case has been followed and cited with approval in numerous later decisions of this court, the latest being in the case of Jinks v. Braly, 202 Okla. 581, 216 P. 2d 581. We there quoted the definition of a final order as contained in 12 O.S. 1941 §953, as follows:
“An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article.”
¶4The opinion also quotes from Wells v. Shrivers, supra, the following language:
*679“ ‘To constitute a “final order” in an action, it must be an order affecting a substantial right in the action, and the effect of such order is to determine the action and prevent a judgment.’ ”
¶5In Jinks v. Braly, supra, we held that an order denying a jury trial, in a case where the parties were entitled to a trial by a jury, was not a final order, for the reason that while it denied a substantial right of the parties demanding a jury, it did not determine the action, because the action was still pending after the order was entered.
¶6In Oklahoma City-Ada-Atoka Ry. Co. v. Parks, 182 Okla. 598, 78 P. 2d 791, we pointed out the distinction between an order sustaining a demurrer to the petition, which was an appealable order in that it prevented the entry of a further judgment in the case, and an order overruling a demurrer to the petition, which left the case pending to be tried on its merits.
¶7In Attaway v. Watkins, 171 Okla. 102, 41 P. 2d 914, we held that an order striking certain defenses from the answer of defendant was not an appealable order, and overruled Wesley v. Diamond, 26 Okla. 170, 109 P. 524, which held that an order striking certain parts of the plaintiffs petition was an appealable order. In Attaway v. Watkins, supra, we quoted with approval from Oklahoma City Land & Development Co. v. Patterson, 73 Okla. 234, 175 P. 934, as follows:
“ ‘No one of the orders made by the district court of Oklahoma county determines any question that affects the substantial rights of any one of the defendants herein. Neither is any one of the orders a final judgment. A ‘final judgment’ has been determined to be one ending a particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to determine the rights of the parties. If such orders as were entered in this case were appealable to this court for review before final judgment, there would never be any end of litigation. It would furnish a method and means by which litigation could be carried on ad infinitum. Public policy requires that there should be an end to litigation at some time, and for that reason our statute has wisely provided a salutary rule which does not permit an appeal to this court from an interlocutory order or ruling made by the trial court during the trial of a cause unless specially authorized. All the rulings complained of in this matter could have been excepted to, and, when a final disposition was made of said cause, and a final order, judgment, and decree entered therein, determining the respective rights of the parties to this controversy, have been reviewed by incorporating the same in an appeal by petition in error to this court. McMaster v. Bank et al., 13 Okla. 326, 73 P. 946; McCulloch v. Dodge, 8 Kan. 476; Flint v. Noyes, 27 Kan. 351; Short v. Nooner, 16 Kan. 220.’ ”
¶8In Fooshee & Brunson v. Smith, 34 Okla. 247, 124 P. 1070, cited with approval in Wells v. Shriver, we said that regardless of the form of a judgment, where the case had been decided on its merits and the rights of the parties to the controversy had been concluded, the judgment was final regardless of what was contained in the journal entry thereof.
¶9Numerous other decisions by this court as to the finality of judgments and orders which rendered them ap-pealable, all holding in accord with the authorities which we have cited above, could be cited and analyzed, but to do so would unduly extend the length of this dissent. It is noteworthy that the majority opinion cites no authority in support of its statement that the finding of the court that a partnership existed was an appealable order prior to the rendition of a final judgment in the case. Of course, a finding that no partnership existed would have been a final order, just as is an order sustaining a demurrer, for the reason that such order or finding would have prevented any further proceedings or judgment in the case, and would have finally determined the rights of the parties.
¶10*680The only case I have found which might be considered to support the statement in the majority opinion is Hardesty v. Naharkey, 88 Okla. 253, 213 P. 89. In that case the court held that a judgment of the trial court canceling certain deeds, adjudging plaintiff to be the owner of an interest in said lands, and rendering a money judgment against the defendants in a specific and designated amount, and directing that execution issue on such judgment, was a final judgment and appealable, although the journal entry further provided for the appointment of a referee for the purpose of an accounting as to certain rentals from oil and gas leases. Under the circumstances of that case the decree was held to be appealable, and such an opinion was based largely, in my opinion, upon the ground that the decree not only decided title to the property in dispute, but awarded execution. In syllabus No. 2 of the opinion in that case the rule is stated:
“When the judgment entry determines issues involving the merits of the action or some part thereof and specifying the relief granted the prevailing party, but reserves for further action an accounting for certain alleged oil lease rentals, and there is nothing therein which postpones its operation until action on the accounting, then such judgment is appealable, under section 5236, Rev. Laws 1910.”
¶11As will be noted from the statement of facts in this case, as set forth in the majority opinion, the trial court entered no judgment, but entered only an order approving the verdict of the jury that a partnership existed as contended by plaintiff, but it certainly cannot be said that any order or judgment was entered by the court “specifying the relief granted the prevailing party.”
¶12Of necessity, under the facts in this case, the court retained the cause for further action, to wit, an accounting between the parties. In my opinion, Hardesty v. Naharkey, supra, is not authority for the rule that in an action of this nature the interlocutory order of the trial court finding that a partnership existed is an appealable order prior to the rendition of a final judgment in the case, and prior to the rendition of any judgment specifying any relief granted.the prevailing party.
¶13In the instant case the finding of the existence of a partnership was a prerequisite to an accounting, since if no partnership existed plaintiff would not be entitled to an accounting. Since the court found that a partnership existed the judgment was not final, and did not conclusively determine the rights of the parties until the accounting was had, and when that had been done, had defendants been dissatisfied with the result, an appeal to this court from the final judgment of the trial court would have presented to this court the identical question presented by this appeal.
¶14If, in the instant case, the majority had held that the finding of the trial court that a partnership existed was correct, this court would be in the anomalous position of affirming the judgment of the lower court, and remanding the case to the lower court for the accounting, Then when the accounting was had, either party dissatisfied therewith would have the right to appeal again to this court from the judgment rendered on the accounting. Thus we would have two appeals in a case where one would serve the purpose, and the net result would be an increase in the work of this court, and the rendition of two final judgments in the court below in the same case. This result would be contrary to all our prior decisions, and would unsettle the rule which has heretofore been well established in this state.
¶15For the reasons above stated, I respectfully dissent to the majority opinion.
¶16I am authorized to state that O’NEAL, J., joins in these views.