Gillespie v. Coleman
| Citation | 98 Va. 276,36 S.E. 377 |
| Court | Supreme Court of Virginia |
| Decision Date | 14 June 1900 |
| Parties | GILLESPIE. v. COLEMAN. |
APPEAL AND ERROR—FINAL ORDER.
An order sustaining a demurrer to a declaration or amended declaration, without a judgment of dismissal, is not final, so that writ of error authorized by Code, § 3454, in an action at law, only in case of final judgment, will not lie.
Error to circuit court, Wytheville county.
Action by Gillespie against Coleman, sheriff. Demurrers were sustained to the declaration and amended declaration, and plaintiff brings error. Dismissed.
Camm Patteson and A. S. Hall, for plaintiff in error.
H. D. Flood, for defendant in error.
The action of the court in sustaining demurrers to the plaintiff's orig inal and amended declarations is complained of. The order of the court upon neither demurrer was final. In sustaining the demurrer to the original declaration, leave was given to amend, and pursuant to that order an amended declaration was filed. The court was of opinion that the amended declaration was not sufficient and sustained the demurrer to it, but did not dismiss the case.
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. But the statute makes no provision for a writ of error in an action at law until there Is a final Judgment Id.
The sustaining or overruling of a demurrer to a declaration is not final. To make it final in the former case, there must be a judgment of dismissal; and in the latter, a judgment for the amount or thing sought to be recovered, or some order which puts an end to the case. See Hancock v. Railroad Co., 3 Grat. 328; Trevilian v. Railroad Co., Id. 312; Jeter v. Board, 27 Grat. 910; Tucker v. Sandridge, 82 Va. 532; 4 Minor, Inst. (3d Ed.) 1064-1066; 2 Enc. Pl. & Prac. 114 et seq., where authorities generally are collected.
From anything that appears in the record, this case is still pending in the trial court, and another amended declaration might be filed there, and further proceedings had in the case.
No final judgment having been rendered in the case, this writ of error must be dismissed as improvidently awarded.
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Hatke v. Globe Indem. Co
...of error does not lie, except where there has been a final order or judgment in the cause. Pollard's Code, § 3454; Gillespie v. Coleman, etc., 98 Va. 276, 36 S.E. 377 [Smiley v. Provident Life & Trust Co., 106 Va. 787, 56 S.E. 728], and cases cited. "The general doctrine as to what constitu......
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Bibber v. McCreary
...such a demurrer, in order to be final within the meaning of Code, sec. 8-462, must go further and dismiss the case. In Gillespie v. Coleman, 98 Va. 276, 36 S.E. 377, the trial court sustained a demurrer to an original and amended declaration, but did not dismiss the case. Judge Buchanan, sp......
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Smiley v. Provident Life &
...as construed by this court, which authorized a writ of error in any case at law until there had been a final judgment See Gillespie v. Coleman, 98 Va. 276, 36 S. E. 377, and authorities cited, especially Trevilian v. Louisa R. Co., 3 Grat. 326; Hancock v. R. & P. R. Co., 3 Grat. 328; Ludlow......
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Hatke v. Globe Indemnity Co.
...error does not lie except where there has been a final order or judgment in the cause. Pollard's Code, section 3454; Gillespie v. Coleman, etc., 98 Va. 276, 36 S.E. 377; Smiley Provident Life & Trust Co., 106 Va. 787, 56 S.E. 728, and cases "The general doctrine as to what constitutes a fin......