Fagan v. Morris Plan Bank

Gilbert, Justice. The petitioner filed an equitable suit against the defendant bank, and upon a demurrer thereto the court rendered the following judgment: “Upon hearing the within demurrer, the same is sustained and the case is hereby dismissed, with cost against the plaintiff, unless within fifteen days from this date the plaintiff amends by alleging such notice to the defendant as would entitle the plaintiff to prevail in the case. This 24th of June, 1935.” The plaintiff filed an amendment on July 8, 1935, which was allowed by the court, but in which the plaintiff expressly stated that it was not for the purpose of complying with the order of June 24, 1935, as to showing notice to the defendant, and which in fact did not allege such notice as would entitle the plaintiff to prevail, but was for the purpose of making other allegations as an amendment to the original petition. On July 15, 1935, the plaintiff filed exceptions pendente lite to the sustaining of the defendant’s demurrer on June 24, 1935. On September 5, 1935, the court sustained a motion of the defendant to dismiss the plaintiff’s amendment, and also sustained the defendant’s demurrer to the petition as amended. The plaintiff brought the case to' this court by bill of exceptions tendered under date of September 17, 1935, assigning error upon the judgment sustaining the demurrer of the defendant on June 24, 1935, and the motion to dismiss the amendment and the defendant’s demurrer to the petition as amended. Held: The plaintiff not having complied with the order of the court as to filing an amendment within fifteen days from June 24, 1935, setting up certain allegations as to notice to the defendant, the judgment in sustaining the demurrer thereupon became final and ended the case; and as there was nothing to amend, all 'proceedings thereafter were nugatory. A final bill of exceptions, and not exceptions pendente lite, was required to preserve any right of the plaintiff; and the bill of exceptions not [348] having been tendered until September 17, 1935, this court is without jurisdiction, and the writ of error is dismissed. No. 11096. April 16, 1936. Ezra E. Phillips, for plaintiff. Robert P. McLarty and Waller G. Cooper Jr., for defendant. All the Justices concur.