68 Miss. 637 | Miss. | 1891
delivered the opinion of the court.
As we interpret the decree of the chancellor he sustained the demurrer on the 4th cause or ground assigned and gave leave to the complainant to amend his bill, and allowed time, how much is not stated, and then proceeded to overrule the demurrer as to all other grounds, with leave to answer. This presents the singular spectacle of a demurrer sustained and overruled both at the same time and by the same decree, which is a new sort of practice to us. A demurrer, however numerous the causes or grounds specially set forth in it, is an entire thing — a whole, and is to be sustained or overruled. It is well for the court to indicate the ground on which it sustains a demurrer for the guidance of counsel as to an amendable defect, but when a demurrer is sustained, no matter on what ground, the bill will be dismissed unless leave is given to amend, and until the amendment allowed is made the demurrant may not be called on to further answer, and when the amendment is made the defendant may answer as at first. Davis v. Davis, 62 Miss. 818.
The effect of the decree in this case was to sustain the demurrer, and the course for the defendant to pursue was, not to appeal from a decree sustaining its demurrer, but to wait the amendment of the bill made necessary by the view of the chancellor, and then and not until then, to plead, demur or answer to the amended bill.
The demurrer was sustained, not overruled, and the appeal of the successful demurrant must be, and is now
Dismissed.