Bock v. Nefsy

207 P. 1008, 29 Wyo. 33, 1922 Wyo. LEXIS 1

Opinion

Kimball, Justice.

This case is here by direct appeal and the respondent moves to dismiss the appeal because there is no judgment or final order to support it.

The record discloses that a demurrer to plaintiff’s amended petition was sustained, but no judgment was entered. The plaintiff undertook to appeal to this court from the order sustaining the demurrer.

By section 6401, Wyo. C. S. 1920, the first section of the direct appeal statute, it is provided that:

“No writ of error shall be necessary to present for review in the supreme court any judgment or order heretofore removable thereto by such writ of error, but any such judgment or order may be therein reviewed by direct appeal, and the words ‘writ of error,’ where used in the laws of this state, shall be held to mean and include ‘appeal.’ ”

Writs of error to reverse, vacate or modify judgments or final orders in civil cases have been unknown in our practice for many years (§ 6392, Wyo. C. S. 1920), and to give effect to the language of the foregoing section it is understood that the legislature in using the term “writ of error” intended to refer to that proceeding which is commenced here by the filing of a petition in error and the issuance and service of a summons thereon. (§ 6373, Wyo. C. S. 1920.) It is clear that it was intended by the direct appeal statute to provide another method for bringing to this court for review the same class of cases which theretofore could be brought here by such proceedings in error. It has been decided several times that an order sustaining a demurrer is neither a judgment nor a final order within the meaning of sections 6369 and 6371, and that a proceeding in error will not lie therefrom. (Menardi v. O’Malley, 3 Wyo. 327, 23 Pac. 68; Turner v. Hamilton, 10 Wyo. 177, 67 Pac. 1117; Greenawalt v. Imp. Co., 16 Wyo. 226, 92 Pac. 1008; Owen v. S. & E. Ry. Co., 19 Wyo. 409, 118 Pac. 652.)

It follows that an appeal cannot be taken from such an order.

The appeal is dismissed.

Blume, J., concurs. PotteR, Ch. J., being ill, did not sit.