Conrad v. O'Boyle

51 Pa. Super. 467, 1912 Pa. Super. LEXIS 245

• Court: Superior Court of Pennsylvania
• Decided: October 14, 1912
• Docket: Appeal, No. 4
• Status: Published

Opinion

Opinion by

Head, J.,

This appeal could with propriety be quashed. It comes from no final or definitive decree of the court below. To the bill filed by the plaintiffs the respondents demurred. The order entered in the court below, from which this appeal is taken, is “these demurrers are sustained.” The bill has never been dismissed. It is still lodged in the court below. Rule thirty-five of the equity rules reads as follows: “If, upon the hearing, any demurrer or plea shall be allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable.” It would seem absurd to say that after a court had dismissed a bill it could then properly make an order permitting the amendment of the dismissed bill. It is manifest therefore that the order complained of is not in contemplation of law of the same significance as a final decree dismissing the bill.

But the appellants have chosen to consider the order sustaining the demurrer as the equivalent of such final decree. They cannot complain if this court, in the consideration of their appeal, takes the same view of it. The learned judge below in his opinion filed sustaining The demurrer has set forth the reasons which in our judgment would have fully warranted him in entering a final decree dismissing the bill. Without any intention of making a bad precedent, all of the judges who heard this case are of the opinion that the present appeal is without merit and that the order of the court below appealed from should be affirmed.

Order affirmed.