
    State of Indiana, ex rel. Horall v. Jacobs et al.
    [No. 11,089.
    Filed November 2, 1921.]
    
      Appeal.—Right of Appeal.—Finality of Judgment.—Review.— Where, in an action on a bond against the principal and surety, both defendants appeared and defended, and a judgment entered against plaintiff and in favor of the surety on plaintiff’s refusal to plead over after the surety’s separate demurrer to the complaint was sustained, was not a final judgment from which an appeal would lie; there being no disposition of the merits of the complaint as regards the principal.
    From Daviess Circuit Court; James W. Ogdon, Judge.
    Action by the State of Indiana, on the relation of Thomas H. Horall, against Thomas Jacobs and another. From the judgment rendered, the plaintiff appeals.
    
      Appeal dismissed.
    
    
      W. A. Cullop and Alvin Padgett, for appellant.
    
      Charles E. Henderson, for appellees.
   Enloe, C. J.

Thomas Jacobs, named as one of the appellees herein, had taken a contract for the construction of a public drain. He filed his bond as such contractor with appellee indemnity company as surety thereon.- The relator instituted suit on said bond against both of said parties, alleging a breach thereof, in ■ that said contractor did not complete said ditch within the time specified in his contract. Service was had upon both defendants, and both appeared and defended. Various motions were filed by said-defendants relating to the complaint of appellant, and after rulings on these motions, the appellee indemnity company, filed its separate demurrer to the complaint, which demurrer was sustained. The appellant refusing to further plead, the court rendered judgment against him and in favor of the appellee indemnity company, for its costs, from which judgment this appeal is prosecuted.

The appellee indemnity company has moved to dismiss this appeal as not having been taken from a final judgment, the merits of said complaint as to said Jacobs, yet remaining undisposed of. This motion must be sustained. Barnes V. Wagener (1907), 169 Ind. 511, 82 N. E. 1037; Daegling v. Strauss (1915), 59 Ind. App. 672, 109 N. E. 920; Wayne Sewer, etc. v. Ward Cowen Constr. Co. (1919), 72 Ind. App. 437, 125 N. E. 84. The right of appeal being statutory, and there being no final judgment, we do not have jurisdiction of the subject-matter of this appeal.

Appeal dismissed.  