Opinion
File No. 8368.
Opinion filed August 30, 1940.
1. Appeal and Error.
An order which does not come within those enumerated in statute enumerating orders which are appealable is not reviewable on appeal. SDC 33.0701.
2. Appeal and Error.
An order overruling demurrer to complaint was an "intermediate order" from which there could be no appeal as a matter of right, and hence appeal from order would be dismissed where there had been no allowance of appeal by Supreme Court. Rev. Code 1919, § 3168; SDC 33.0701, 33.0701(6).
Appeal from Circuit Court, Butte County; Hon. Charles R. Hayes, Judge.
Action by Dan Hall against the city of Belle Fourche, a municipal corporation, in the State of South Dakota. From an order overruling a demurrer to the complaint, defendant appeals.
Appeal dismissed.
Burton Penfold and Dan McCutcheon, both of Belle Fourche, for Appellant.
Atwater Helm, of Sturgis, for Respondent.
Defendant demurred to the complaint, and has attempted to appeal from the order overruling the demurrer.
[1, 2] SDC 33.0701 enumerates the orders which are appealable. An order which does not come within those enumerated is not reviewable. Moore v. Hahn, 65 S.D. 284, 273 N.W. 377. An order sustaining or overruling a demurrer was within those enumerated in Section 3168, Rev. Code 1919. This provision has been omitted from the South Dakota Code of 1939. The order in question is an "intermediate order" from which there can be no appeal as a matter of right. SDC 33.0701(6). Since the order is not reviewable as a matter of right and there has been no allowance of an appeal by this court, the attempted appeal must be dismissed. It is so ordered.
SMITH, P.J., and ROBERTS and RUDOLPH, JJ., concur.
POLLEY and WARREN, JJ., not sitting.