Wright v. Neathery

Wheeler, J. Two grounds of error are relied on for reversing the judgment; 1st. That the demurrer to the plaintiff’s petition having been sustained, there was no suit pending, and consequently there could be no intervention ; 2d. That the survey, having been made for the plaintiff Harper, did not support the claim of the intervener. To the first ground, it must be. answered that although the demurrer was sustained, judgment final was not rendered upon it for the defendant. The case was continued to afford the plaintiff an opportunity to amend, and was still pending when the appellee intervened. The plaintiff might still have amended his petition, and prosecuted Ms suit to final judgment upon the merits, had he seen proper; and his failure to do so could not deprive the intervener of his right to maintain his claim, which had been asserted before final judgment rendered in the case. The objection, therefore, is not well founded. The remaining objection to the judgment is not entitled to more consideration. The intervener asserted title in his intestate, and there being no statement of facts, the presumption must be that his claim of title was sustained by evidence legal and sufficient. The judgment is affirmed. Judgment affirmed.