Litch

The record shows that “The demurrer to the second amended complaint was duly argued by respective counsel, and after due consideration by the court it is ordered that said demurrer be and the same is hereby sustained. To which ruling counsel for plaintiff then and there duly excepted.”

The notice of appeal specifies that “The plaintiffs hereby appeal . . . from the order of the aforesaid Superior Court . . . in sustaining the demurrer of defendants to the said plaintiffs ’ complaint. ’ ’

It does not appear that plaintiffs ever applied to the court for permission to file another amended complaint nor that there would have been a denial of said application if it had been made.

However, we must presume that plaintiffs ■ chose to rely upon the complaint in question, and in orderly sequence a judgment should have been rendered dismissing the action or for defendants for their costs. An appeal from the judgment would have brought under review the question of law whether the court erred in holding that the second amended complaint fails to state facts sufficient to constitute a cause of action. But, as shown by the certificate of the clerk, “no judgment upon said order or any judgment…