16 P.2d 1064 | Idaho | 1932
This is an application for a writ of review directed to the order of the district court overruling a demurrer and remanding the case to the justice's court in which it originated for trial. The appeal to the district court was taken by the defendant Kranches from an order of the justice of the peace sustaining a demurrer of the plaintiff to the answer of the defendant. No trial was ever had in the justice's court and no judgment was ever rendered in the action. No bond upon appeal was ever filed. The La Salle Extension University, plaintiff here and respondent below, moved to dismiss the appeal in the *561 district court for want of jurisdiction. The motion was denied and the court entered the order complained of.
The order was absolutely void because the court had no jurisdiction for two reasons: (1) The order of the justice of the peace sustaining a demurrer is not appealable and can be reviewed only by appeal from a final judgment. (I. C. A., sec.
Plaintiff has no remedy by appeal, because neither the order denying motion to dismiss nor the order overruling the demurrer are appealable. (I. C. A., sec.
The writ of review is granted and the order of the district court overruling the demurrer is reversed. The case is remanded, with instructions to dismiss the appeal from the justice's court. Costs are awarded to plaintiff.
Lee, C.J., and Budge, Givens and Varian, JJ., concur.