Jacobs v. New York Life Insurance

Campbell, C. J., delivered the opinion of the court. The motion will be denied. The order as entered on the minutes of the circuit court, sustaining the demurrer to the [658] declaration, although not expressing that the action was thereby dismissed, was, in substance and effect, a judgment that the plaintiff take nothing, and that defendant go hence without day. 5 Am. & Eng. Enc. L., 562. It is not the duty of the court to offer the plaintiff leave to amend when a demurrer is sustained to the declaration. If desired, it must be asked for, and, if leave to amend is not obtained during the term, the judgment is final and the case disposed of, so that costs may be taxed, and an appeal may be prosecuted from the judgment as final. Motion denied.