Hobson v. Hobson

• Decision Date: 13 March 1902
• Citation: 100 Va. 216,40 S.E. 899
• Court: Virginia Supreme Court
• Parties: HOBSON v. HOBSON.

40 S.E. 899

100 Va. 216

HOBSON

v.HOBSON.

Supreme Court of Appeals of Virginia.

March 13, 1902.

APPEALABLE ORDERS—RULING ON DEMURRER—NECESSITY OP OBJECTIONS.

1. Where an order is not appealable, an attempted appeal therefrom will be dismissed by the supreme court, though the objection that it is not appealable is not urged on the hearing.

2. Code, § 3454, authorizing appeals from a final decree or order, does not authorize an appeal from an order sustaining a demurrer to an amended bill on the ground that it makes an entirely new case, in a cause in which the original action is still pending, and may be proceeded with as if the amended bill had not been filed.

Appeal from circuit court, Powhatan county.

Suit by Hobson against Hobson. From an order sustaining a demurrer to an amended bill, the plaintiff appeals. Appeal dismissed.

Edward S. Brown, for appellant

T. M. Miller, B. G. Southall, and W. H. Mann, for appellee.

BUCHANAN, J. This is an appeal from an order sustaining a demurrer to an amended bill filed at rules, and dismissing the same, upon the ground that it makes an entirelynew case, inconsistent with and repugnant to the case stated in the original bill.

The first question to be considered is whether or not an appeal lies from such an order. If it does not, although no objection was made at the hearing upon that ground, this court has no jurisdiction, and the appeal must be dismissed as improvidently awarded. Marchant v. Healy, 94 Va. 614, 27 S. E. 464.

The general rule is that an appeal or writ of error does not lie from an interlocutory order allowing or refusing amendments to the pleadings until there has been a final decree or judgment, except where the statute otherwise provides. See Gillespie v. Coleman, 98 Va. 276, 36 S. E. 377; Lancaster v. Lancaster, 86 Va. 201, 9 S. E. 988; Elder's Ex'rs v. Harris, 75 Va. 68.

Our statute (section 3454 of the Code) provides that a party to a chancery cause, In which there is a decree or order dissolving an injunction, or requiring money to be paid, or the possession or title of property to be changed, or adjudicating the principles of the case, or in which there is a final decree or order, may present a petition for an appeal. The order appealed from is not a final decree. The original proceedings are still pending, — may be revived against the representatives of the deceased parties, and proceeded with as If the amended bill had never been filed. It is not an order dissolving an injunction, nor requiring...