Fickett v. Fuller

Atkinson, J.

The defendant in an equitable suit filed a demurrer to the petition. At the hearing on demurrer on June 29, the judgment included an opinion, and after discussing the questions at length it stated: “It is ordered, therefore, that the petition be and the same is hereby dismissed as- to all items of recovery, except the land transactions referred to in paragraph eighteen (18) of the original petition, on this special ground, unless met by amendment in ten (10) days, the petition being retained in court for that period of time, for this purpose only. If amended in that time by attaching a copy of an assignment legally sufficient to authorize the prosecution of this suit for the purposes named, this ground of dismissal will be removed.” This part of the order was followed by a further discussion of the case, after which it was stated: “Wherefore it is ¡ordered and adjudged that the original and amended demurrers to plaintiff’s petition as amended be and the same are hereby sustained, and plaintiff’s petition is hereby dismissed. Judgment against plaintiff for —-- dollars costs.” After the grant of the order the plaintiff presented an amendment to the petition to meet, the requirements stated in the first above-quoted excerpt from the order of the judge. Upon this amendment the judge entered the following order: “The foregoing amendment read and considered. Let the same be allowed and filed. The sufficiency of the same is not now passed upon. Right to object or demur allowed. This 9th day of July, 1929.” Held:

1. The order of June 29, construed in its entirety, was not a final disposition of the case.

2. The motion to dismiss the bill of exceptions, on the ground that it was prematurely brought to the Supreme Court, must be sustained. Direction is given, however, that the official copy of the bill of exceptions of file in the office of the clerk of the trial court shall operate as exceptions pendente lite.

Writ of error dismissed.

All the Justices concur.