City of Plattsburg v. Allen

84 Mo. App. 432, 1900 Mo. App. LEXIS 73

Opinion

SMITH, P. J.

The record in this case nowhere discloses, nor is it anywhere stated by counsel in their briefs, that there was a final judgment given on the demurrer. All that the record shows is that the defendant filed a demurrer to the plaintiff’s petition which was by the court sustained, arid to which ruling plaintiff excepted. As said in Kautsch v. Droste, 82 Mo. App. 412, a judgment on a demurrer to be final should be to the effect that: “Therefore it is considered by the court that the plaintiff take nothing by his writ, etc., and that the defendant go thereof without day,” etc. Palmer v. Crane, 8 Mo. 620.

An appeal or writ of error lies only from a final judg ment. R. S. 1889, sec. 2246; Holloway v. Holloway, 97 Mo. 639; Mills v. McDaniels, 59 Mo. App. 331. Nor will either lie from a judgment overruling or sustaining a demurrer. Spears v. Bond, 79 Mo. 467; Berry v. Zimmerman, 43 Mo. 215; Robinson v. County Court, 32 Mo. 428. A writ of error to be effective must operate on a final judgment.

As the judgment on the demurrer was not a final judgment, the writ was, for that reason, ineffective. It results that we are without jurisdiction of the cause. The writ will accordingly be dismissed.

Ellison, J., concurs; Gill, J., not sitting.