Ulman v. Greenwood

84 N.J.L. 284 | N.J. | 1913

The opinion of the court was delivered by

Gummere, Chief Justice.

The defendant in this case demurred to the plaintiff’s declaration, which was founded upon a New York judgment. The demurrer was stricken out by ihe court on the ground that it was so framed as to prejudice, embarrass or delay a fair trial of the action. The order striking out the demurrer granted the defendant leave to file an answer to the declaration within twenty days after the service of a copy of the order. The defendant refused to accept this privilege, and took this appeal within the time granted to answer.

Our Practice act (Comp. Stat., p. 4086, § 110) permits that when any pleading is ordered to be stricken out because so framed as to prejudice, embarrass or delay a fair trial of the action, the order may be entered on the record, if required by the party against whom the same is made, and error may be assigned thereon. The record referred to in this provision is the judgment record, and until that is made up, manifestly, the rule cannot be entered upon it. It is entirely settled that there can be no review in this court of any interlocutory order of an inferior court of law until after the entry of final judgment. If the defendant desired to stand or fall upon the validity of his demurrer, he should have seen to it that judgment by default was entered against him and that the order striking out the demurrer was made a part of the record of that judgment. Blessing v. McLinden, 52 Vroom 380.

No final judgment having been entered against the defendant, so far as the case shows, the appeal is premature, and must be dismissed.