Saffel v. Woodyard

Poffenbarger, President: The certificate in this case, by which review of the decision of the court below upon a demurrer to a declaration in an action of assumpsit to recover a proportionate part of the cost of ■ construction of a line fence between the lands of coterminous owners, consisting of three counts, two special and the other common, must be dismissed as having been improvidently sent up and docketed. After sustaining the demurrer as to the special counts, the order dismissed the action. Its conclusion reads: “And [748] the plaintiff not desiring -to amend his declaration any further, it is ordered that the same be dismissed and the defendant shall recover of and from the plaintiff his costs herein.” In our opinion, this is a final judgment of dismissal and, therefore, is reviewable only by. writ of error. Appealable judgments, orders and decrees cannot be certified for review. Pittsburgh and W. Va. Gas Co. v. Shreve, 90 W. Va. 277; Heater v. Lloyd, 85 W. Va. 570. Dismissed for want of jurisdiction.