Drummond v. Husson , 8 How. Pr. 246 ( 1852 )

Bosworth, Justice.

The 2nd subdivision in section 349 of the Code as last amended, gives an appeal from an order, sustaining or overruling a demurrer, but I do not understand this provision as converting a decision upon a demurrer, in all cases, from a judgment into a mere order. When a demurrer is sustained which goes to the whole complaint or answer, the decision, as it determines that the party against whom it is given has no right of action or no defence, is in its nature a final judgment, and this is so even when liberty to amend is given, if the party fail to avail himself of the privilege within the limited time ; but when the demurrer relates only to a part of a pleading, the decision sustaining or overruling it, may with great propriety be termed an order, since its only effect is to strike out or retain that part of the pleading to which the - demurrer applies, leaving the other issues undetermined.

In this case the demurrer was only to a part of the answer, and’ consequently was properly described as an order, and being so, the question as to the costs to be allowed upon this-appeal is free from difficulty.

The sixth subdivision in section 307 of the Code gives before argument $15, and after argument $30, upon an appeal from the special to the general terms, and contains only an exception of an appeal from an order granting or denying a non-enumerated motion. The defendant would have been entitled to the costs thus given, had the terms of the exception been unaltered,, since by rule twenty-seven of this court, an appeal from a decision upon a demurrer, whether a judgment or an order, is in all cases an enumerated motion, but the exception as amended in 1852, now embraces appeals in all the cases mentioned in section 349 as amended, and it has already been stated that an appeal from an order sustaining or overruling a demurrer is one of those cases. The costs of the defendant must therefore be limited to ten dollars, which are all that we can give..

Approved, upon consultation by all. the judges,.