Russell v. Russell

There is a motion to dismiss the appeal in this case, but it is not based upon *190-the insufficiency of the court’s ruling to support an appeal. We must take judicial notice of the question whether there is a sufficient judgment on the ruling to support an appeal. Upon an examination of the judgment entry we find there is no adjudication or judgment by the court but only the expession of an opinion that the demurrer to the bill is not well taken. Such a state of the record is not sufficient to support an appeal. Section 755, Title 7, Code, provides for an appeal from an interlocutory decree overruling or sustaining a demurrer to a bill in equity; but to justify an appeal upon the basis of that statute there must be a decree or judgment and not a mere expression of opinion by the court. It is therefore necessary for us to order a dismissal of the appeal without considering the grounds of the motion made to dismiss it.

The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.

Appeal dismissed.