Partlow v. Bean, 163 Ill. App. 510 (1911)

Oct. 14, 1911 · Illinois Appellate Court

163 Ill. App. 510

R. L. Partlow, Appellant, v. A. B. Bean, Appellee.

Appeals and errors—what not final judgment. A judgment for costs upon sustaining a demurrer is not a final judgment from which an. appeal may be taken.

Mandamus. Appeal from the Circuit Court of Clark county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.

Dismissed.

Opinion filed October 14, 1911.

Davison & Bartlett, for appellant.

J. W. Graham, for appellee.

Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action by petition for mandamus to compel A. B. Bean, a justice of the peace, to issue an execution upon an alleged judgment rendered by him. Answer was filed to this petition and a demurrer filed to the answer; the demurrer was sustained to the answer and by the court carried back and sustained to the petition for mandamus. The petitioner then amended his petition and a demurrer was filed to the amended petition; this demurrer was also sustained and upon sustaining this demurrer the court then rendered judgment against the petitioner for costs and awarded an execution therefor. The petitioner did not elect to stand by his petition and no judgment was rendered in bar of action; neither was the petition dismissed. . The judgment for costs upon sustaining the demurrer is not a final judgment and there was no final judgment rendered from which an appeal is authorized; the appeal is from an interlocutory order and gives this court no jurisdiction of this cause.

The appeal is dismissed with leave to either party to withdraw the record and apply to the circuit court for final judgment.

Dismissed.