It is objected that this motion cannot be entertained, because the return has not been filed, and it is urged that until this is done, this court is not possessed of the case. But we think that when a notice of appeal has been served, and the proper undertaking perfected, the case is so far removed from the subordinate court, that we can entertain any application, which the case, in its then condition, may render necessary. Our general rules are based upon that idea, for they allow an order to dismiss an appeal for a default in filing the return.
The appeal which was attempted to be made in this case was premature. The determination of the demurrer, no doubt, entitled the defendant to judgment, unless the plaintiff should amend; but until final judgment was entered, the case was not in a condition to be reviewed here. The appeal must, therefore, be dismissed.
Ordered accordingly.
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