Bosworth v. Wilson

49 S.E. 942, 57 W. Va. 80, 1905 W. Va. LEXIS 12

• Court: West Virginia Supreme Court
• Decided: January 31, 1905
• Status: Published

Opinion

BRAnnon, President.

To a bill in equity in the circuit court of Randolph county filed by Boswortli and Rum'barger against Wilson and others a demurrer was entered, and the court made an order which sustained the demurrer and gave leave to file a second amended bill.

From this order an appeal has been taken.

This Court cannot consider the merits. The law gives it no jurisdiction of an appeal from such a decree, for want of finality. The order is interlocutory. The court can retract it and make an opposite ruling. An order merely sustaining a demurrer, but not dismissing the bill, is not appealable. It is a mere opinion not carried out. Gillespie v. Colemam 98 Va. 276; 2 Ency. Pl. & Prac. 114; 2 Cyc. 605. The case, of White v. C. & O. R. Co., 26 W. Va. 800, rules this case.. It holds that an order sustaining a demurrer and giving leave to amend a declaration is not appealable.

Even if the feature of leave to amend were absent, and it were only an order sustaining a demurrer, no appeal would lie; but that feature makes it plainer that the order is not final. 2 Cyc. 605; 601; 2 Ency. Pl. & Prac. 114. See Hannah v. Bank, 53 W. Va. 82.

The case of Gillispie v. Coleman, supra, holds that there is no appeal whether the order sustains or overrules a demurrer. Parsons v. Snyder, 42 W. Va. 511, holds that an order overruling a demurrer will not support an appeal.

We dismiss the appeal as improvidently granted.

Dismissed.