Ernest v. Grand Trunk Western Railway Co.

Robinson, P. J. Transferred from the Supreme Court under the act of March 12, 1901. 1. To the first, third, fourth and fifth paragraphs of appellant’s complaint a separate demurrer was overruled, and to the second paragraph, was sustained. An exception was reserved by appellant. The only error assigned is sustaining this demurrer. The final entry is the ruling on the demurrer. The record does not disclose that further proceedings of any kind were had in the trial court. The error assigned presents no question, for the reason that the record does not show that final judgment was rendered (§644 Bums 1901, §632 R. S. 1881), and the ruling questioned is not within the exceptions to the general statute authorizing appeals (§658 Bums 1901, §646 R. S. 1881). Sustaining a demurrer to a complaint is not a final judgment from which an appeal will lie. Slagle v. Bodmer (1877), 58 Ind. 465; State, ex rel., v. Herod (1898), 21 Ind. App. 177, and cases cited; James v. Lake Erie, etc., R. Co. (1896), 144 Ind. 630, and cases cited; Ewbank’s Manual, §82; Elliott, App. Proc., §81. Appeal dismissed.