
    HENRY THOMAS and WIFE, Appellants, v. THE UNION PACIFIC R. R. CO., Respondent.
    
    AppeatJ from Order Sustaining Demurrer. — No appeal lies from an order of the District Court sustaining a demurrer.
    Appeal' from the District Court of the Third Judicial District.
    Motion in the Supreme Court to dismiss the appeal.
    The facts appear in the Opinion.
    
      J. C. 'Hemingray, for Appellants. .
    
      'Hempstead & Kirkpatrick, for Respondent.
   Boreman, J.,

delivered the Opinion of the Court.

In the District Court the Defendant, (the Respondent herein), filed its demurrer to' the complaint, basing the same upon the grounds that there was a misjoinder of parties, and that the complaint did not state facts sufficient to constitute a cause of action. The demurrer, as appears from the stipulations filed herein, and which stand as the record on this appeal, was sustained, and it is from this order of the District Court sustaining the demurrer; that the Plaintiff brings his appeal to this Court. Upon the calling of the case in this Court, the Respondent moves to dismiss the appeal for the reason that the same is not taken from & final judgment.

When the District Court had made the order appealed from, the Plaintiffs were 'still in Court. They had the right to amend their complaint. That they did not amend or did not desire to amend, does not change the case. The right to do so existed, and they were not, by the order,- precluded for exercising that right. The order, therefor, of the District Court, although a final disposition of the demurrer, was not a final disposition of the case as to Appellants. A final disposition of a case in the shape of a judgment of dismissal usually follows an order sustaining a demurrer of the character of the one filed in this case, but it does not necessarily follow immediately. The Defendant may not ask it. In this case no judgment of dismissal appears; and if it did, it would avail nothing, as this appeal is not taken from it; but from a prior interlocutory order. This Court therefore has no jurisdiction to hear this appeal, The consent of the parties, even if the stipulations filed herein could be construed to give such consent, cannot give this Court jurisdiction. This principle needs no discussion. The appeal will therefore be dismissed, but without any prejudice against the rights of the Appellants to take another appeal.

McKean, C. J. and Emerson, J., concurred.  