Baber v. Page

• Citation: 120 S.E. 137
• Parties: BABER. v. PAGE et al.
• Decision Date: 15 November 1923
• Court: Supreme Court of Virginia

120 S.E. 137

BABER.

v.PAGE et al.

Supreme Court of Appeals of Virginia.

Nov. 15, 1923.

Error to Circuit Court, Albemarle County

Proceeding by notice of motion for judgment by C. W. Baber against John W. Page and others. An order was entered sustaining a demurrer to plaintiff's amended notice, and he brings error. Writ dismissed.

E. O. McCue, of Charlottesville, and Curry & Curry, of Staunton, for plaintiff in error.

Allen & Walsh and Albert S. Boiling, all of Charlottesville, for defendants in error.

KELLY, P. [1, 2] This is a proceeding by notice of motion for judgment based upon alleged malicious prosecution. The defendants demurred to the original notice, and the court sustained the demurrer, with leave to the plaintiff to amend. Thereupon the plaintiff filed an amended notice, the defendants again demurred, and the court entered the following order, to which this writ of error was awarded, to wit:

"This day came again the parties by their attorneys, and the written demurrer with grounds therefor to the amended notice and each count thereof heretofore filed being fully argued, the court upon full consideration doth sustain the demurrer to the notice and each count thereof, with leave, however, to plaintiff to amend if he be so advised."

The defendants in error move to dismiss the writ as improvidently awarded, on the specific ground that the foregoing order did not constitute a final judgment. The demurrer raised questions both of form and substance, and the order complained of does not indicate the ground or grounds upon which the court based its action; but, even if it appeared that such action was based solely upon the theory that the notice was insufficient in substance, the motion to dismiss would have to be sustained. The statute, section 6336 of the Code, provides for an appeal from an interlocutory decree in equity "adjudicating the principles of a cause, " but this provision does not apply to judgments at law, which, under the plain terms of the section referred to, must be final to be appealable.

In Gillespie v. Coleman, 98 Va. 276, 36 S. E. 377, the lower court sustained a demurrer to a declaration, but did not dismiss the case. A writ of error was granted, and subsequently dismissed by this court as improvidently awarded, Judge Buchanan, who delivered the opinion of the court, saying:

"From some chancery orders, although there is no final decree in the case, it is provided by statute that an appeal may be taken. Code, § 3454 [now section 6336]. But the statute makes no provision for a writ of error in an action at law until there is a final judgment. Code, § 3454 [now section 6336]. The sustaining or overruling of a demurrer to a declaration...