
    Michael Cummings, Appellant, vs. I. V. D. Heard, adm’r. of Est. of E. Hamlon, dec’d.
    An order or decision of the District Court, sustaining or overruling a demurrer, is not an appealable order. Such decision or order is a judgment, which must be perfected before an appeal therefrom will lie.
    This was an appeal from an order of the District Court of Ramsey County, sustaining a demurrer. The appeal was dismissed, and the points made by counsel on the argument of the cause, were not considered in this Court.
    D. Newell, counsel for Appellant.
    I. V. D. Heard, counsel for Respondent.
   By the Court.

Flandbau, J.

This is an appeal from a decision made by the District Court of the second District in Ramsey County, under the Territory, sustaining a demurrer to part of the Defendant’s answer. The Plaintiff moves the Court to dismiss the appeal, on the ground that the decision or order of the Court below is not an appealable one.

The decision of a démurrer has always been held to be a judgment, and as such, it was necessary to perfect it before an appeal would lie from it. The Statute of Minnesota, R. S., p. 414. sec. 11, which provides what judgments and orders are appealable to the Supreme Court, clearly does not include such a decision as the one in question. This has been the almost invariable ruling in New York, under a statute substantially similar to ours, (New York Code, sec, 349,) up to the year 1851, at which time it was amended by allowing an appeal from an order when it grants or refuses a new trial, or when it sustains or overrules a demurrer. Since this amendment even, the Courts have uniformly held that where the demurrer goes to the whole complaint, or answer, so that the decision of it determines the rights of the parties to the action, it is still a judgment, and must be perfected as before, in order to be reviewed on appeal, and that in such cases the amendment is not operative. See Bruce vs. Pinkney, 8 How. Pr. R. 397. Lewis vs. Acker, ib. 414. Bowman vs. Central R. R. Co., 10 How. Pr. R. 218. Cook vs. Pomeroy, ib. 221, 12 How. Pr. R. 435. 13 ib. 139.

The order is not an appealable one under our Statute, and the motion to dismiss the appeal should be granted. As this view disposes of the case, it is unnecessary to discuss the merits of the demurrer.  