Wolff v. City National Bank & Trust Co.

OPINION

By HORNBECK, J.

This cause has been briefed and argued orally upon the theory that it was an appeal on questions of law. An examination of the transcript of pleadings and journal entries Discloses that an entry of date March 26, 1937, recites that the cause came on for hearing upon the demurrer of the defendant to the plaintiff’s petition on the grounds that the “petition does not state a cause of action”; that upon consideration of the demurrer it was sustained, and

“It is therefore ordered and adjudged that defendant’s demurrer be and the same is hereby sustained.”

Exceptions are noted by plaintiff. This is the only entry on the demurrer and is the last entry appearing among the journal entries transmitted to this court by the clerk of courts.

This entry on the action of the demurrer is not a final order or judgment and will not support an appeal.

It was essential to a final judgment, after the sustaining of the demurrer, that it appear that plaintiff desired to plead no further and judgment should then be specifically entered against the plaintiff and for the defendant for its costs. Wild’s Journal Entries, Fifth Edition, Form No. 79.

Inasmuch as there is no final entry this court is without jurisdiction to consider or pass upon the questions presented. The appeal must, therefore, be dismissed.

BARNES, PJ, and GEIGER, J, concur.