32 P.(2d) 257

#### ROESKE v. LAMB et al.

No. 3980.

Supreme Court of New Mexico.

April 24, 1934.

*310David A. Grammor, of Albuquerque, for appellant.

E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for appellees.

WATSON, Chief Justice.

This motion to dismiss the appeal presents the question whether an order sustaining a demurrer to a complaint as setting forth no cause of action is appealable.

Appellant contends that the order is appealable as “such (an) interlocutory * * * order * * * as practically dispose(s) of the merits of the action, so that any further proceeding therein, would be only to carry into effect such interlocutory * * * order * * N. M. App. Proc. Rule II, § 2.

It is not easy to answer this contention if we treat the taking of the appeal as an election not to plead further, as we believe we should. The complaint having been adjudged insufficient, and appellant electing to stand upon it, there could be but one further proceeding, viz., a final judgment of dismissal. That judgment would merely carry the order into effect. The merits of the action are practically disposed of by the order.

In Morrison v. Robinson, 25 N. M. 417, 184 P. 214, the court dismissed the appeal on the ground that the order sustaining the demurrer was not a final judgment. The court’s attention was not called to the then new provision for appeals from interlocutory orders. The decision is deemed not controlling.

Cornett v. Fulfer, 26 N. M. 368, 189 P. 1108, is not in point. It is in a class with Winans v. Bryan, 33 N. M. 532, 271 P. 469.

The motion will be overruled. It is so ordered.

SADLER, HUDSPETH, BICKLEX, and ZINN, JJ., concur.