
    J. Davis v. T. B. Montgomery, et al.
    Appeals Only Taken From Final Judgments.
    An appeal can only be taken from a final judgment.
    Pleadings.
    Where allegations are affirmative and set up new and material matter, and no demurrer, answer or reply is filed thereto, such allegations must be taken as confessed.
    APPEAL FROM LINCOLN COURT OF COMMON PLEAS.
    February 20, 1880.
   Opinion by

Judge Hines:

The appeal in this case as to Thomas B. Montgomery should be dismissed, because there is no final judgment in his favor from which an appeal will lie. Demurrers were sustained to the petition and amended petition, but subsequent to the judgment sustaining the demurrers, a second amended petition was filed which appears to have never been acted upon, and the judgment rendered in favor of the other appellees does not purport to pass upon the respective rights of appellant and Montgomery.

The judgment quieting the title of appellees, Walter Hays, Charles Carson, Isaac Carson, Anderson Blair, and Wyatt Hill, should be affirmed. In their answer and cross-petition they affirmatively allege that they were the owners and in possession of the land, now held by them, at the time and prior to the execution of the mortgage to Spraggins, and that the mortgage did not embrace the land held by them. As to the Montgomery mortgage, they say that at the sale under which appellant purchased, no portion of the land held and claimed by them was sold or offered to be sold. They say that at the time of the institution of the action by Montgomery and Carson and Spraggins they were the legal owners and lawfully seized of the land held by them, and that they have been ever since and now lawfully seized of said land, and that no attempt was made in the said proceedings to subject any portion of their said land; that the land embraced in the Spraggins mortgage is more than sufficient to pay both mortgage debts. To this pleading there was no demurrer, answer, or reply. The allegations, being affirmative and setting up new and material matter, must be taken as confessed. Without reference to the proof, the judgment of the court below upon the pleadings is correct.

R. C. Warren & W. G. Welch, for appellant.

Hill & Alcorn, for appellees.

Wherefore the appeal as to Montgomery is dismissed, and the judgment as to the other appellees is affirmed.  