Aiton v. Board of Medical Examiners

PER CURIAM. The record in this case disclosed that the appellant filed in the court below a notice of motion for a writ of certiorari, accompanied by the affidavit of the petitioner, setting forth the facts upon which the application was based. No motion appears of record. The affidavit concludes with a prayer that a writ of certiorari be allowed. The defendant, evidently in doubt as to the view the trial court might take as to whether the application was by motion or petition, answered ‘ Un resistance of said motion and the allowance of the writ,” showing “that the facts stated in the petition of said plaintiff, attached to his motion in said matter, do not state facts sufficient to entitle him to the allowance of said writ of certiorari,” and prayed judgment that said motion and petition be denied. This pleading of defendant was treated as a demurrer, and was sustained. In due time the appellant in open court gave notice of appeal to this court from the order “sustaining the demurrer of the defendant,” and thereafter filed his bond on appeal, wherein it is recited that he “has appealed from said order sustaining said demurrer to the supreme court of the territory. ’ ’ The record is silent as to any application for leave to amend the petition. No final order denying the petition for the writ was entered, nor is there any final judgment in the cause. The entry in the clerk’s minutes of an order sustaining a demurrer is not the equivalent of either a final order or final judgment. There must be a complete determination of the controversy before an appeal to this court will lie, unless otherwise expressly prescribed by statute. Paragraphs 441, 1493 and 1214 of the Revised Statutes of 1901. The appeal is dismissed for want of jurisdiction. The CHIEF JUSTICE not sitting.