Stebbins v. Laird

The opinion of the court was delivered by Brewer, J.: In a case appealed from a justice of the peace the district court gave the plaintiff (defendant in error here) leave to file an amended bill of particulars. Before trial is had, or indeed any further proceedings in that court, plaintiff in error brings the case here, alleging error in the order granting leave. We do not think such an order one that can be reviewed in this court before a final disposition of the case below. It is claimed to be an order involving the merits of the action, or some part thereof, and therefore reviewable under the third clause of § 542 of the civil code. It is difficult to define exactly the limits of this' clause, for nearly every order made in the progress of a trial has such bearing on the case, that without doing violence to language, it might be said to involve some part of the merits of the action. Yet we cannot think that the legislature intended that these intermediate orders should be the subject of review in this court while the action was progressing in the district court. It can only include such orders as amount to an adjudication, a disposition of some part of the claim or defense. Giving leave to amend, does not amount to such a disposition and adjudication. If the amendment should, as is claimed in this case, substitute an entirely new cause of action, it would amount [233] virtually to the dismissal of one and the commencement of another suit; but the merits of neither would be thereby adjudicated. The petition in error will therefore be dismissed. All the Justices concurring.