Fenton v. Salt Lake County

4 Utah 116

Opinion

POWERS, J.:

This matter comes up on a motion to dismiss tlie appeal. The plaintiff filed his complaint in the court below, to which tlie defendant demurred. Tlie demurrer was overruled by the lower court, whereupon the defendant appealed from tbe order overruling the demurrer to this court, which reversed tlie order of the lower court and directed that court to sustain the demurrer, which was done. The plaintiff elected to stand upon his complaint, and thereupon the lower court dismissed the case, from which judgment the plaintiff now appeals, and tlie defendant moves to dismiss tlie appeal on the ground that the lower court merely carried out the instructions of this court; that there is nothing presented by the present appeal that was not passed upon when the case was here before. The statute gives the plaintiff the right to appeal to this court: Laws, 1884, sec. 828. "Whether there is any merit in his appeal cannot be. considered on this motion: Mich. Ins. Co. v. Whittemore, 12 Mich. 311; Tower v. D. & M. R. Co., 7 Mich. 10. Neither can we consider whether a principle before decided is applicable to the case on its merits.

We are of the opinion, therefore, that this, motion must be denied.

Zane, C., J., concurred. Boreman, J., did not sit in this case.