10 Wash. 163 | Wash. | 1894
The opinion of the court was delivered by
This is an appeal from an order sustaining a demurrer to a complaint. After the demurrer was sustained, and before judgment was entered, the plaintiff gave notice of appeal from the said order sustaining the demurrer, and did appeal therefrom, the judgment never having been entered in the original case. Respondents move to dismiss this appeal for the reason that there is no provision in law for appealing from an order of the court sustaining a demurrer.
This court held in Potvin v. McCorvey, 1 Wash. 389 (25 Pac. 330), that no appeal would lie from an order sustaining a demurrer, and that ruling has been followed in several subsequent cases prior to the enactment of the laws of 1893. The laws of 1893 (p. 119)- provide what are appealable orders, and provide in terms that such orders as are specified in the act only shall be appealed from. We fail to find any provision in the laws of 1893 for an appeal from an order sustaining a demurrer.
It is urged by the appellant that the sustaining of the demurrer was practically a judgment of dismissal and necessarily in effect discontinued the action, and that if plaintiff had moved for a formal judgment of dismissal it would have put itself voluntarily out of court, and that such a motion would have barred its, right tp, have commenced another
The motion will therefore be sustained and the appeal dismissed.
Hoyt, Stiles, Anders and Scott, JJ., concur.
