City of Plattsburg v. Allen

SMITH, P. J. The record in this case nowhere discloses, nor is it anywhere stated by counsel in their briefs, that there was a final judgment given on the demurrer. All that the record shows is that the defendant filed a demurrer to the plaintiff’s petition which was by the court sustained, arid to which ruling plaintiff excepted. As said in Kautsch v. Droste, 82 Mo. App. 412, a judgment on a demurrer to be final should be to the effect that: “Therefore it is considered by the court that the plaintiff take nothing by his writ, etc., and that the defendant go thereof without day,” etc. Palmer v. Crane, 8 Mo. 620. An appeal or writ of error lies only from a final judg [433] ment. R. S. 1889, sec. 2246; Holloway v. Holloway, 97 Mo. 639; Mills v. McDaniels, 59 Mo. App. 331. Nor will either lie from a judgment overruling or sustaining a demurrer. Spears v. Bond, 79 Mo. 467; Berry v. Zimmerman, 43 Mo. 215; Robinson v. County Court, 32 Mo. 428. A writ of error to be effective must operate on a final judgment. As the judgment on the demurrer was not a final judgment, the writ was, for that reason, ineffective. It results that we are without jurisdiction of the cause. The writ will accordingly be dismissed. Ellison, J., concurs; Gill, J., not sitting.