
    PAULLING vs. MARSHALL AND WIFE.
    [APPEAL FROM JUDGMENT OF NON-SUIT, TAKEN IN CONSEQUENCE OF RULING OF COURT ON PLEADINGS. ]
    
      Nonsuit, appeal from judgment of; when will not he set aside. — Where tho defendant demurs to the plaintiffs complaint, and it is sustained by the court, and the plaintiff excepts to the decision of the court, and thereupon suffers a non-suit, such a non-suit must be regarded as a voluntary, and not a necessary non-suit, and such a non-suit will not be set aside, on an appeal under section 2759, Revised Code. That section only applies to cases where it is necessary to make the decision of the court a part of the record, by bill of exceptions. By such a non-suit the plaintiff is out of court, and must begin again.
    Appeal from Circuit Court of Perry.
    Tried before Hon. Milton J. Sarpcld.
    The facts are sufficiently stated in the opinion.
    W. B. Modawell, for appellant.
    Brooks & Bragg, contra.
    
   PECK, C. J.

The appellees, in the court below, demurred to appellant’s complaint, -which being sustained, appellant excepted to the decision of the court, and thereupon took a non-suit, and appeals to this court, under section 2759, Revised Code, to have the decision of the court below revised and the non-suit set aside.

We had occasion to construe said section at the present term, in the case of Darden v. James. In that case we held, that the right to appeal to this court to have a non-suit set aside, is given by said section, and as the right depended wholly upon said section, it was to be confined and limited to cases clearly within its purview and meaning; that said section did not apply to decisions of the court made on demurrers to the pleadings, but only to such decisions as are necessarily made a part of the record by a bill of exceptions; and, as a bill of exceptions is never necessary to enable the plaintiff to revise the decision of the court, sustaining a demurrer to Ms complaint, such a decision did not authorize him, under said section, to suffer a non-suit, and appeal to this court to have the same set aside.

We remain satisfied with the construction of said section then given. Without doing violence to the plain meaning of said section, no case can be embraced by it where the decision to be revised necessarily forms a- part of the record, .without a bill of exceptions, and in such a case it can never be said to be necessary for the plaintiff to suffer a non-suit; and if he takes a non-suit, when it is not necessary for him to do so, it must be regarded as a voluntary, and not a necessary, non-suit, and he is thereby out of court, and must begin again. ■

Let the appeal be dismissed.  