Opinion
April 15, 1930.
July 10, 1930.
Appeals — Demurrer to complaint — Overruling — Interlocutory order.
On a demurrer filed to a complaint against a borough ordinance, providing for the annexation of land adjacent to the borough, it was alleged that the complaint had not been made in time and that it was incorrect in some other respects. The court below made an order overruling the demurrer, but without prejudice to the borough to raise any issue which it might deem proper and to have the same determined in the manner provided by law by appropriate answer to the rule or other proceedings within thirty days.
In such case the order of court was interlocutory and not final and an appeal therefrom will be quashed.
Appeal No. 189, April T., 1930, by Borough of Brookville from order of Q.S., Jefferson County, No. 23, October Sessions, 1929, in the matter of the appeal of Harvey C. Love and C.F. Menteer.
Before TREXLER, P.J., LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Appeal quashed.
Complaint against a borough ordinance. Before DARR, P.J.
Demurrer to the complaint.
The court overruled the demurrer as quoted by the Superior Court. Borough of Brookville appealed.
Error assigned, among others, was the decree of the court.
W.N. Conrad, for appellant.
Lavelle A. Wilson, of Wilson Wilson, for appellees. — No appeal lies from an interlocutory order: Arnold v. Russell Car Snow Plow Company, 212 Pa. 303; Miller Paper Co. v. Keystone C. C. Co., 275 Pa. 40.
Argued April 15, 1930.
The proper authorities of the Borough of Brookville passed an ordinance providing for the annexation of adjacent land in Pinecreek Township. The ordinance was duly advertised and posted. Two citizens of the annexed territory, presented a complaint to the quarter sessions of Jefferson County, alleging certain imperfections in the petition for annexation: for example — that the majority of the free-holders of the territory sought to be annexed had not signed.
The Borough filed a demurrer, alleging that the complaint was not made in time and also stating that the petition was incorrect in some other respects. The court overruled the demurrer making the following order: "And now, December 28, A.D., 1929, the demurrer is overruled, but without prejudice to the borough to raise any issue it may deem proper and have the same determined in the manner provided by law by appropriate answer to the rule or other proceeding within thirty days from this date." To this action of the court, the Borough of Brookville took the present appeal. The order above quoted did not finally dispose of the case. It is interlocutory and hence no appeal lies. When an order is in the nature of a judgment, although not denominated as such, and finally ends the right to further press the cause of action, it is final, (Riling v. Idell, 291 Pa. 472) but under the present order the Borough could still contest the matters urged by the complainants: Arnold v. Russell Car Snow Plow Co., 212 Pa. 303; Miller Paper Co. v. Keystone C. C. Co., 275 Pa. 40, and cases therein cited.
The appeal is quashed.