
    Sarah F. Cross v. Donald Cross.
    
      Divorce — Final order — Election to insist on plea.
    
    1. Appeal lies from an order in a divorce suit overruling a plea of no marriage.
    2. Where a plea is overruled with leave to answer within a limited time, it seems that taking an appeal before the expiration of that period may be treated as an election to stand by the plea, and the appeal may be sustained accordingly.
    
      Motion to dismiss appeal.
    Submitted June 3.
    Denied June 11.
    
      George W. Bates for the motion.
    
      Otto Kirchner against.
   Per curiam.

Bill for divorce. The defendant interposed a plea that he was never married to the complainant. The court, on hearing upon this plea, overruled it, and gave defendant leave to answer within twenty days. Without waiting for the expiration of the twenty days defendant appealed, and complainant moved to dismiss the appeal on the ground that the order overruling the p^lea was not a final order.

The defendant undoubtedly had a right, within twenty days, to elect to abide by his plea, or to answer, under the permission given him. Had he waited till the expiration of the twenty days without answering, and then appealed, we should have had no doubt of his right to take that course. And we are inclined to hold that when he appeals within the twenty days, he thereby elects 'to stand by his plea, and not to accept the permission given him to answer; and in this view the appeal may be saved.

Motion denied, without costs.  