Opinion
No. 5-1330
Opinion delivered October 7, 1957.
APPEAL ERROR — APPEALABLE DECISIONS — ORDERS OVERRULING OR SUSTAINING A DEMURRER. — Action of trial court in sustaining a demurrer in part and overruling it in part, without dismissing any part of the complaint, held not a final order from which an appeal would lie.
Appeal from Carroll Chancery Court, Western District Thomas F. Butt, Chancellor appeal dismissed.
Claude A. Fuller, for appellant.
Festus O. Butt, for appellee.
Appellant, Thomas F. Walters, filed this suit to enforce a lease agreement in which he is named lessee, containing an alleged option to purchase. Appellee, Burnett, demurred to the complaint, and the Court sustained the demurrer in part. We do not reach the merits of the controversy because there is no final order from which an appeal will lie. Ark. State Board of Architects v. Larsen, 226 Ark. 536, 291 S.W.2d 269. The alleged cause of action to which the demurrer was sustained was not dismissed. The order is as follows:
"On this day comes on for consideration the demurrer to complaint by the defendant Burnett and on hearing the same and argument of counsel the court finds that paragraph 3 of the lease contract pleaded setting out a purported option contract is void because of want of consideration for said option contract and because the contractual provisions therein are indefinite and uncertain and meaningless. The demurrer is therefore sustained as to said paragraph and as to said alleged option contract and as to all parts of the complaint based thereon. The demurrer as to the remainder of complaint based on the pleaded lease is overruled. To which action as to said option contract the plaintiff excepts; as to such action as to the lease alleged, and to refusal of the court to enter formal declaratory judgment denouncing such alleged option contract as void, the defendant excepts."
On appeal, appellant says:
"The Court erred in dismissing that part of appellant's complaint by which he claimed the right of buying said property, without permitting plaintiff a reasonable time to amend said complaint."
As we view the order, it dismisses no part of the complaint. Appellant is at liberty to stand on his complaint and refuse to plead further, or he can amend; but he must do one or the other, and he still has that right.
Appeal dismissed.