24 N.M. 356 | N.M. | 1918
OPINION OP THE COURT.
The appellant, the Otto;Johnson Mercantile Company, a corporation, instituted an action against the appellee, Salome Garcia, in the district court for Union County, to recover a money judgment for goods sold and delivered. Appellee demanded a bill of particulars, and, the same not having been filed within ten days after service of said demand, appellee answered the complaint, denying the material allegations thereof! Thereafter the appellant moved that the cause be dismissed at its costs. The motion was overruled, and from that order this appeal is prosecuted.
The appellee has moved to dismiss the appeal, on the ground that the order overruling the motion to dismiss the cause is interlocutory in its nature, and one from which an appeal does not lie under the statute. Section 2, c. 43, Laws of 1917, provides:
“Appeals shall also be allowed by the district court, and entertained by the Supreme Court, in all civil actions, from such interlocutory judgments, orders or decisions of the district courts, as practically dispose of the merits of the action, so that any further proceedings therein would he only to carry into effect such interlocutory judgment, order or decision.”
We are satisfied that no appeal is allowable in cases of this kind. The order of the court in the premises does not dispose of the merits of the action. In fact it does not affect the merits of the action in any wise. The appellant, apparently would dismiss the action in the trial court to overcome its default in failing to furnish the demanded bill of particulars.. Whatever may be the outcome of this default is wholly immaterial to a determination of the question at bar. The proposition is simply whether an order denying motion of a plaintiff to dismiss a ease, before its submission, is oné practically disposing of the merits of the action, etc. We hold that it is not, and that the appeal is premature. Without doubt the action of the trial court with reference to said order may be reviewed upon an appeal from a final judgment entered in the cause.
For the reasons stated, the appeal will be dismissed; and it is so ordered.