Negy v. Kwalick

83 N.J.L. 632 | N.J. | 1912

Per Curiam.

The plaintiff in this case sued to recover for the pecuniary loss sustained by the next of kin of his intestate by reason of the latter’s death, which was charged to be due to the wrongful act of the. defendant, Kwalick. The defendant 'demurred to the declaration, and a motion having been made to strike out the demurrer as frivolous, it was ordered that “It having-been determined that said demurrer is frivolous, it is thereupon, on this 6th day of June, 1911, ordered that it be stricken out, and that tire defendant plead to the declaration within twenty days after service of a true copy upon the defendant or Ms attorney, and that in default of pleading as aforesaid judgment may be entered against the defendant by default,” Two days after the entry of this rule the present writ of error was sued out, and, under it the defendant challenges tlie validity of the rule.

An order of the Supreme Court striking out as frivolous or sham a plea or demurrer, being merely incidental, and discretionaiy in character, is not final, in the sense of the common law rule applicable to- writs of error, and, consequently, is not reviewable before us. It was so decided by this court in the case of Brown v. Warden, 15 Vroom 177, and again in State Mutual Building and Loan Association v. Williams, 49 Id. 720.

The writ of error must be dismissed as improvidentfy sued out.