Gus Gurley sued the Newport News and Mississippi Valley Railroad Company for ten thousand dollars, as damages for personal injuries alleged to have been inflicted upon him by the defendant, while he was in its service in the capacity of conducter of one of its railway trains.
To the declaration, defendant filed three pleas: (1) Not guilty; (2) gross carelessness and misconduct on the part of plaintiff, whereby he brought his misfortune upon himself; (3) accord and satisfaction.
Plaintiff joined issue upon the first and second pleas, and filed a replication to the third plea. Defendant demurred to the replication. The Court sustained the demurrer, and from that action, without inore, plaintiff appealed in error.
The attempted appeal.was premature, and, therefore, conferred no jurisdiction upon this Court.
Appeals as a matter of right, and appeals in the nature of a writ of error, lie from final decrees and judgments only; and final decrees and judgments are only such as decide and dispose of the whole merits of the case. Code (M. & V.), §§3872, 3873, and 3893; Younger v. Younger, 90 Tenn., 25.
The judgment sustaining the demurrer to the replication was not final; it did not decide and *488dispose of the merits of the whole case. On tbe contrary, it adjudged simply that the replication was not good in law, and left all other questions undisposed of and undecided.
The plaintiff had a right to plead further, but he did not offer to do so. He might have denied the truth of the third plea, and in that way made an issue for the jury; or, upon his failure to plead over, the Court might have rendered final judgment, and dismissed the suit. Nothing of this kind was done or attempted to be done. There was no order to plead further — no request for that privilege; there was no declination to plead over, no judgment on .the plea and dismissal of suit.
The Court only adjudged the demurrer good and the replication bad. ' From that action, and at that stage of the case, the plaintiff attempted to appeal in error.
It is not, and could not reasonably be, claimed that this is a discretionary appeal under § 3874 of the Code.
The defendant also desires the judgment of this Court upon its demurrer, and offers to waive all objections as to the nature of the judgment below and time of the appeal. That does not help the matter. Jurisdiction cannot be conferred by-consent. Gibson v. Widener, 85 Tenn., 16.
Let the appeal be dismissed for prematurity.