Dye v. Farm Mortgage Inv. Co. of Topeka

70 F.2d 514, 1934 U.S. App. LEXIS 4206

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 23, 1934
• Docket: No. 1012
• Status: Published

Opinion

PHILLIPS, Circuit Judge.

On the 30th day of June, 1933, the court entered an order sustaining a demurrer to the amended petition and giving the plaintiffs 15 days to file a second amended petition. On July 8, 1933, the plaintiffs filed a second amended petition. On the 31st day of October, 1933, the court entered an order striking the second amended petition from the files.

The plaintiffs have undertaken to appeal from the last-mentioned order. Such order was in effect an order sustaining a demurrer to the amended petition. See AEtna Life Ins. Co. v. Phillips (C. C. A. 10) 69 F.(2d) 901 (decided March 21, 1934).

No judgment was entered dismissing either the amended petition or the second amended petition.

It is well settled that an order sustaining a demurrer to a petition is not a final order within the meaning of 28 USCA § 225. Dyar v. McCandless (C. C. A. 8) 33 F.(2d) 578; Missouri & K. I. Ry. Co. v. Olathe, 222 U. S. 185, 32 S. Ct. 46, 56 L. Ed. 155; Darling Lumber Co. v. Porter (C. C. A. 5) 256 F. 455. The proper procedure is for the plaintiffs to elect to stand upon their petition and to let a final judgment of dismissal be entered against them. An appeal will then lie from such final order and the ruling on the demurrer may be reviewed.

The order sought to be appealed from here not being a final order, this court is without jurisdiction to entertain the appeal and it is therefore dismissed.