Gillespie v. Coleman

36 S.E. 377, 98 Va. 276, 1900 Va. LEXIS 39

• Court: Supreme Court of Virginia
• Decided: June 14, 1900
• Status: Published

Opinion

Buchanan, J.,

delivered the opinion of the court.

The action, of the conrt in sustaining demurrers to the plaintiff’s original and amended declarations is complained of. The order of the court upon neither demurrer was final. In sustaining the demurrer to the original declaration, leave was given to amend, and, pursuant to that order, an -amended declaration was filed. The court was of opinion that the amended declaration was not sufficient, and sustained the demurrer to it, but did not dismiss the case.

From some chancery orders, although there is no final decree in the case, it is provided by statute that an appeal may be taken. Code, sec. 3454. But the statute makes no provision for a writ of error in an action at law until there is a final judgment. Code, sec. 34o4. • .,. ■ 1

The sustaining or overruling of a demurrer to a declaration is not final. To malee it final in the former case, there must be a judgment of dismissal. See Hancock v. R. & P. R. Co., 3 Gratt. 313; Trevillian v. Louisa R. R. Co., 3 Gratt. 312; Jeter v. Board, 27 Gratt. 910; Tucker v. Sandridge, &c., 82 Va. 532; 4 Minor’s Inst., 1064-66 (3d ed.); 2 Amer. & Eng. Enc. Pl. & Pr., 114, &c., where authorities generally are collected.

. From anything that appears in the record, this case is'.still pending in the trial court, and another amended declaration might be filed there, and further proceedings had in the case.

FTo final judgment -having been rendered in the case, :this writ of error must be dismissed as improvidently awarded..

Writ of error dismissed.