Rubey v. Shain

51 Mo. 116

Opinion

Wagner, Judge,

delivered the opinion of the court.

This was an action of trespass, and the defendant interposed a demurrer to the petition, which was overruled by the court.

There is no final judgment or assessment of damages in the case. The only record entry is, that the “demurrer was by the court overruled, to which ruling the defendant at the time excepted, and defendants filing no further pleadings, judgment is rendered for plaintiff.” This is not such a judgment as will support an appeal.

We have looked into the petition, and from the allegations therein made, it is obvious that the defendants should have answered to the merits, instead of demurring. The appeal will be dismissed, but the court below should permit the defendants to file an answer if they see proper to do so. Appeal dismissed.

Judge Adams concurs. Judge Bliss absent.