
    Wright & Valley v. Creamery Package Co.
    May Term, 1904.
    Present: Rowell, C. X, Tyler, Mtjnson, Start, Watson, Stafford, and Haselton, JJ.
    Opinion filed August 26, 1904.
    
      Bill in Equity — Demurrer—Interlocutory Decretal Order— Appeal.
    
    If a demurrer to a bill in chancery is overruled, but the bill is not taken as confessed, there is no final decree, and hence no appeal lies.
    Appeal in Chancery, Orleans County. Heard at Chambers on demurrer to the bill. Stafford, Chancellor. Demurrer overruled, pro forma and bill adjudged sufficient. The defendant appealed. At its May Term, 1904, on motion of the orators, the Supreme Court dismissed the appeal.
    The demurrer which was overruled is for “that the complainants have not, in and by their said bill, stated such a case as doth or ought to entitle them to> any such discovery or relief in equity as is thereby sought and prayed for, from or against this defendant; that, if the matters stated do. give the complainants any cause of complaint against this defendant, the same is triable and determinable at law, and not to be .inquired of by this Court.”
    
      Young & Young for the orators.
    The order overruling the demurrer was not a final decree, hence this Court has no jurisdiction of the appeal. Hill et al. v. Lamb et al., 28 Vt. 85; Nelson et al. v. Brown et al., 59 Vt. 600; Wilcox v. Wilcox, 63 Vt. 137; Laanoille County 
      
      etc., Co. v. Buck, 69 Vt. 369; Sheldon v. Clemmons, 72 Vt. 185.
    
      W. W. Miles for the defendants.
    
    The issue raised by the demurrer in this case goes to the merits of the bill. If it is sustained, the bill will be dismissed and the suit ended. Unless this appeal is allowed and the questions raised by the demurrer determined before a hearing on the merits, said questions can never be heard in this Court. Enright v. Amsden, jo Vt. 183; Holt v. Daniels, 61 Vt. 89; Glastenbury v. McDonald, 44 Vt. 450; Wade v. Pulsifer, 54 Vt. 45.
   PER Curiam.

If, on the hearing of a demurrer to a bill in chancery, the demurrer is overruled, and the bill adjudged sufficient, but not taken as confessed, there is no final decree, and an appeal to the Supreme Court does not lie. The case remains in the court of chancery, to be further proceeded with. In accordance with this rule, drawn from the statutes, and recognized by the rules of court, the appeal in this case, is, on motion, dismissed.  