151 Mich. 265 | Mich. | 1908
This case was before this court on an appeal by defendants from an order overruling their demurrer to the bill of complaint. This court sustained the demurrer and the cause was remanded to the circuit court with permission to complainant to amend his bill of complaint. Williams v. Olson, 141 Mich. 580. Reference is had to the opinion of the court for a statement of the case set forth by complainant, the grounds for demurrer, and the reasons of the court for sustaining the demurrer.
Complainant afterwards, on December 19, 1905, filed an amended bill in the circuit court by adding to the original bill an allegation that the tax deeds issued to defendant Mary E. Olson on which the tax notices were based had been prematurely issued; and also an allegation of a tender of a certain sum of money to the defendant Mary E. Olson. Exhibits were attached to said amended bill of complaint showing that tax notices for tax deeds held for the years 1893, 1894, 1895, 1897, 1898 were served upon Y. A. Goddard and George W. Tolbert, administrator and executor, respectively, of E. G. Goddard and James Tolbert on September 14 and October 5, 1901. It is admitted in defendants’ brief that the allegations thus set forth bring the tax deed alleged to be void clearly within the case of Monaghan v. Auditor General, 136 Mich. 247.
Defendants Olson demurred to this amended bill for the same reasons as alleged in the first demurrer, with the added reasons “that the sum of money required by statute was not paid or tendered to the said Mary E. Olson within the time in said statute provided; and that no suit to set aside said tax deed or deeds was commenced
On August 7, 1906, complainant filed his Second amended bill of complaint, by which he added to the first amended bill, as exhibits, copies of the tax deeds issued to the defendant Mary E. Olson, upon the validity of which her title and defense in this suit depend. A motion was then made by defendants Olson to strike this second amended bill from the files for the reasons:
1. The prayer of the said bill was not divided into paragraphs and numbered consecutively.
2. That said bill contained no allegations of new facts.
The court denied this motion provided complainant correct the infirmity as to the prayer within five days, allowing defendants 15 days after service of such corrected prayer to plead, answer, or demur. Defendants appeal to this court from such order. The right to appeal from this order is challenged by complainant for the reason that it is not a final order. The case of Carpenter v. Auditor General, 144 Mich. 251, relied upon by defendants, is distinguishable from the case at bar. In that case the bill of complaint, on motion, was' stricken from the files, and such order determined complainants’ right to pursue her remedy, and was therefore a final disposition of the case. In the case at bar no such situation is presented. Puterbaugh’s Michigan Chancery (2d Ed.), p. 856.
This order was not a final order. The appealability of an order is determined by its effect upon the rights of the parties. An order to be final must dispose of some portion of the controversy. It must finally determine some right between the parties.
The appeal is dismissed, with costs to complainant, and the cause will be remanded to the circuit court for further proceedings.