Merchants National Bank v. Clark-Parker Co.

Plaintiff filed an action in the court below on a promissory note to which the defendant S. N. Clark responded by an answer and counterclaim. The only denial in the answer is that any part of the sum demanded by the complaint is due, owing or unpaid. On October 15, 1928, the court made an order striking out the counterclaim, and on December 10, 1928, made an order denying a motion made by the defendant S. N. Clark, for leave to file an amended answer and counterclaim. The appeal is attempted to be taken from these two orders, the one striking the counterclaim and the other refusing to permit an amended counterclaim to be filed. The respondent has made a motion to dismiss on the ground that the notice of appeal, in so far as it relates to the first order, was filed too late, it having been filed on December 27, 1928, or on the seventy-second day after the order was made, and on the further ground that the orders are not appealable.

We shall determine the latter contention first for the reason that if the orders are not appealable the former assertion is unimportant. The appellant argues that the orders are in effect a final determination of the cause and he relies very largely…