Opinion
42752 Record No. 7844.
September 1, 1972
Present, Snead, C.J., I'Anson, Carrico, Harrison, Cochran and Harman, JJ.
Pleading and Practice — Order Overruling Demurrer — Not Appealable.
An order overruling a demurrer is not one which adjudicates the principles of a cause and is not appealable.
Appeal from a decree of the Circuit Court of New Kent County. Hon. John E. DeHardit, judge designate presiding.
Dismissed.
Robert E. Eicher (Fielding L. Williams; George R. Humrickhouse; Williams, Mullen Christian, on brief), for appellants.
Paul M. Shuford (Hunter W. Martin, on brief), for appellees.
The bill of complaint filed in this case by the complainants, Bessie R. Bowcock and Marjorie Richardson Goodall, sought partition in one of the modes prescribed by law of certain real property in New Kent County. The defendants, Laura M. Richardson and others, filed demurrers on the ground that the bill did not set forth a cause of action entitling the complainants to partition against the defendants. The chancellor overruled the demurrers, and the defendants sought and were granted an appeal.
The threshold question is whether the order overruling the demurrers is an appealable order. If it is not, then this appeal must be dismissed.
Our jurisdiction to review the order is determined by reference to Code Sec. 8-462 and specifically to that portion of the Code section which permits appeals in chancery cases from interlocutory orders which adjudicate "the principles of a cause." An order overruling a demurrer is not one which adjudicates the principles of a cause. Lancaster v. Lancaster, 86 Va. 201, 9 S.E. 988 (1889). Hence, the order in this case is not appealable, and the appeal granted the defendants must be dismissed as improvidently awarded.
Appeal dismissed.