Opinion
6 Div. 465.
May 20, 1919.
Appeal from Circuit Court, Fayette County; R.I. Jones, Judge.
Action between V.G. Hall and L.V. Thompson. From a judgment in favor of Thompson, Hall appeals. Appeal dismissed.
McNeil Monroe, of Fayette, for appellant.
The appeal in this cause must be dismissed for that it is not taken from such a judgment as will support an appeal. In fact there is no final judgment of the circuit court. The judgment from which this appeal is taken is in the following language:
"This cause coming on to be heard, the defendant filed a motion to strike the complaint, as amended, from the file, which motion being considered, it is ordered, adjudged, and decreed by the court that the same be and is hereby overruled. The defendant next filed demurrers 1, 2, to the complaint, as amended, which demurrers being considered by the court, it is hereby ordered, adjudged, and decreed that the same be and they hereby are overruled. Thereupon the defendant filed a plea of recoupment, which the plaintiff objected, and the court sustained objection and refused to allow said plea of recoupment to be filed. Thereupon the defendant filed a plea of not indebted and plea of set-off and payment, upon which issue was joined. The plaintiff, V.G. Hall, was thereupon introduced as a witness in his own behalf, and was asked by his counsel if a certain note dated March 1, 1915, and payable to the order of Hall and South, was his property, to which defendant objected, because the note itself showed said note was payable to Hall and South, and no transfer of same appeared on the note, or had otherwise been shown, which objection the court sustained. The plaintiff thereupon offered to amend his complaint so as to sue in the name of Hall and South, to which defendant objected on the ground this would be a departure from the original cause of action, which was in the name of V.G. Hall, and would be an entire change of parties, which objection the court sustained. Thereupon plaintiff asked for and was granted a nonsuit with a bill of exceptions."
It will be noted that this is an attempted judgment by the court upon the pleadings, and that there was no final judgment by the court that the plaintiff would be nonsuited, but a mere recital that the "plaintiff ask for and was granted a nonsuit."
An appeal can only be taken from a final judgment of the circuit court. Code 1907, § 2837.
The appeal is dismissed, and the costs of the appeal are taxed against the appellant.
Appeal dismissed.