James v. Lake Erie & Western Railway Co.

Monks, J. This is the second appeal of this cause. The first appeal was to the Appellate Court, where the judgment was reversed and the court below directed to sustain the demurrer to the complaint. Lake Erie, etc., R. R., Co. v. James, 10 Ind. App. 550. On the return of the cause to the court below, the demurrer was sustained and appellant filed an amended complaint. Appellee demurred to the amended complaint for want of facts, which was sustained, to which ruling of the court appellant excepted. The only error assigned in this court calls in question the action of the court in sustaining appellee’s demurrer to the amended complaint. Counsel for appellee insist that no question is presented by the record for the reason that it does not appear from the record that final judgment has been rendered in the cause. An appeal only lies from judgments that make a disposition of a cause except as provided by statute. Thomas, Admr., v. Chicago, etc., R. W. Co., 139 Ind. [631] 462; Champ v. Kendrick, 130 Ind. 545; Northcutt v. Buckles, 60 Ind. 577. Filed April 23, 1896. The final entry of the proceedings of the court below is as follows: “Comes now the parties by counsel and the demurrer to the complaint is sustained by the court, to which ruling of the court the plaintiff (appellant) excepts and refuses to plead further, and prays an appeal to the Supreme Court, which prayer the court grants.” As no final judgment was rendered, the appeal was prematurely taken. The appeal is therefore dismissed.