Menardi v. Omalley

Corn, J., (after stating the facts substantially as above.) The record presents nothing upon which this court can act. Judgment was not rendered for the defendant upon the sustaining of the demurrer, and no final order, within the meaning of section 3128 of the Code of Civil Procedure, appears to have been made. The order sustaining the demurrer did not, in effect, determine the action, and prevent a judgment. The order striking the case from the docket upon the plaintiff’s motion either disposes of it finally upon plaintiff’s own motion, of which he cannot complain, or leaves it pending in that court, subject to be reinstated upon the docket. If it is still pending, so far as anything appears to the contrary, he may yet amend his petition, and recover judgment. In either ease, the plaintiff in error has no standing in this court. The petition in error will be dismissed. Van Devanter, C. J., and Sattfley, J., concurred.