On consideration of the motion for rehearing I have withdrawn by concurrence in the opinion and judgment, in so far as it holds that there was no proper exception to the ruling disallowing plaintiff's amendment.
The plaintiff had filed an amendment which had been allowed "subject to objection." The defendant then filed one pleading referred to as "motion and demurrer," in which he demurred "to said petition and any and all its amendments," for reasons stated. In this pleading he alleged "that the amendment attempted does not set forth any grounds or facts which are germane to the issues attempted in the main case," and further made the point that it would set up a new and distinct cause of action. It was further pointed out that the petition, either with or without the amendment, stated no cause of action, and further that "This defendant *Page 675 demurs specially to said amendment," for certain stated reasons. The prayer was that the amendment be disallowed, and, in the event allowed, that all grounds of demurrer be sustained and the petition dismissed. Upon consideration of this pleading the judge entered an order sustaining "the motion and demurrer of the defendant, filed Oct. 10, 1941."
The bill of exceptions recites that "said order sustaining the motion and demurrer of defendant J. W. Weaver, and dismissing the petition of the plaintiffs as amended, constituted a final disposition of the case, adverse to the contentions of the plaintiffs;" following this is the assignment of error which recites that plaintiffs except "to the ruling of the court sustaining the demurrer of the defendant." (Italics mine.) In specifying the record this order is referred to as "the order of the court of Oct. 24, 1941, sustaining the motion and demurrer of the defendant."
The real nature of the pleading which the judge sustained by his order was that of demurrer to both amendment and petition. So when exception was taken to the ruling "sustaining the demurrer," in my judgment it reached the whole order. But even if the exception improperly or insufficiently characterized the order, the exception itself was "to the ruling of the court" (italics mine). I do not think the court made two rulings in the sense treated in the majority opinion. It does not appear nor could it be suggested that the losing party was acquiescing in any portion of the order; and unless it did so affirmatively appear, it should not be so treated when "the ruling" is excepted to. The majority opinion in effect dismisses because it refuses to review that portion of plaintiffs' case; and the terms of the Code, § 6-1307, should be applied. The court is fully enabled "to ascertain substantially the real questions in the case which the parties seek to have decided therein."