Milde v. Leigh

24 N.W.2d 55, 74 N.D. 15, 1946 N.D. LEXIS 58

Opinion

This is an appeal from an order overruling a demurrer to defendant's answer. Prior to the adoption of the Revised Code of 1943, such orders were appealable. Section 7841, C.L. of 1913 specifically included an order which "sustains or overrules a demurrer" among the reviewable orders. As re-enacted this section appears as § 28-2702 of the Revised Codes of 1943. The latter section omits the order overruling a demurrer from the list of reviewable orders. The omission was not inadvertently made for the notes of the Code Commission show the following:

"The provision for an appeal from an order overruling a demurrer has been omitted upon recommendation of the committee on procedure to eliminate unnecessary appeals which do not finally settle a controversy."

It is thus clear, that the order appealed from is not appealable. The appeal is therefore dismissed.

CHRISTIANSON, Ch. J., BURKE, NUESSLE, BURR and MORRIS, JJ., concur.