Chipman v. Cornwell

Lewis, J. 1. When the court passes an order sustaining a motion to dismiss a case on the ground that the petition does not set forth a cause of action, and in such order allows the plaintiff a specified number of days within which to amend his petition, the effect of the order is to take the case out of court and finally dispose of the same, unless a proper amendment is filed within the time named in the order. 2. If such amendment is not so filed, it is too late to thereafter except pendente lite to the order of dismissal, but the same should be made the subject-matter of a'direct bill of exceptions to the Supreme Court, which should be sued out within the time allowed by law for excepting to a final judgment. Argued July 17, — Decided August 8, 1900. Motion to dismiss writ of error. Isaac Beckett and George W. Beckett, for plaintiff. Saussy & Baussy, for defendant. S. The bill of exceptions in the present case was not sued out in due time,’ arid accordingly the writ of error must be dismissed. . Writ of error-dismissed. All the Justices concurring.