dissenting.
As I understand the opinion of the court it is based upon the. proposition that we ought not examine the ruling of the trial court upon the demurrer to the amended complaint as amended, because, it is said, there is no final judgment before us. To that proposition I shall address myself, but in passing! it may be noted that the court has *581undertaken to say that the demurrer was properly sustained. I quote from the opinion: “It is apparent from a reading of the complaint” that “In no event could the defendant bank be held liable until and unless the plaintiff has established his- cause of action against Morgan [another defendant whose demurrer was overruled] and recovered a judgment against him. It would be idle, therefore, for this court, even if the order or judgment * * # constituted a final judgment, to pass upon the part of the case which is now before us.” In short, we say the demurrer was- properly sustained, but give leave to the plaintiff in- error to renew his arguments when he shall, if ever, come here again.
I have examined the authorities which the court holds sustain the opinion, but shall not undertake to review them here. It suffices to say that in my judgment they have no bearing upon the issue presented in the case at bar as the matters presented in them were of manifestly different character. Surely because-, as in Dusing v. Nelson, 7 Colo. 184, 2 Pac. 922, an action is dismissed for lack of prosecution as to one of the three parties to a contract, all being jointly liable, it does not follow that where a number of persons, severally liable, are sued, that one of them, successful upon general demurrer, has not obtained a final judgment in his favor when the plaintiff fails to plead over and elects to- stand upon his complaint. Nor is the judgment here involved any less final because in Goodknight v. Harper, 70 Colo. 41, 197 Pac. 237, an order of the county court sustaining an administrator’s intermediate report was held not to be a final judgment. The test has always been, as was held in Dusing v. Nelson, supra, to- be whether the order entered in a cause- puts an end to the action. If it does, as between the parties to that order, then, I submit, it is a final judgment to which a writ of error will lie, for this court should concern itself with the judgments before it for review, and not speculate upon the possibility of perhaps being obliged at some future time to review other judg*582meats entered between the same party on one hand and other parties on the other in the same cause. And if the test be whether the successful party has been dismissed without day, as it was held to be in Hagerman v. Moore, 2 Colo. App. 83, 29 Pac. 1014, and approved in Rice v. Van Why, 49 Colo. 7, 111 Pac. 599, then the case before us involves a final judgment for the order of the trial court was, “It is ordered, adjudg'ed and decreed by the court that said cause, so far as it affects said defendant bank be, and the same is, hereby dismissed at plaintiff’s costs, and that said defendant bank go hence hereof without day.” It cannot be denied that more apt words to indicate the finality of the determination between the plaintiff and the bank could have been used.
It seems to me the difficulty the court has failed to overcome is the proper significance of the word “parties.” Because it has been held that appeals cannot be taken piecemeal and that the reviewing court should determine all controversies between the parties at one time, the court is of belief that no matter how many parties there may be to an action, it must be tried below as to all of them before one can seek a writ of error. That, I apprehend, puts a construction upon the meaning of the word “parties” as may very effectively prevent many litigants from ever' obtaining a final determination of their controversies. For example, as may be the fact here, a plaintiff may join many defendants, but would not care to try his case if his complaint were finally determined not to state a cause of action against one of them.
A practical difficulty which the plaintiff will encounter with the law established by the court is, that if he shall choose to- pursue his action against the remaining defendants below, and shall prevail, that he must, - if he wants to hold the bank, sue out a writ of error to review what must then, I suppose, have become a final judgment in favor of the bank, although why it should be more final then than now I am unable to discover. Or it may be that his endeavor to state a cause of action against the *583bank can never be reviewed, for the trial court bas likely exhausted its powers to dismiss the bank more effectively than it has, and the plaintiff may find himself with a worthless judgment ag'ainst the remaining defendants, and a final but unreviewable order in favor of the one defendant from whom recovery could be had. Or, supposing the remaining defendants shall succeed on the trial but errors in the reception of testimony require the reversal of the judgment in their favor, and we then hold that the demurrer as- to the bank was properly sustained, the litigants and the state have been put to the expense of a trial which our disposition of the present case might have averted altogether. Which brings me to the principle which I conceive should be our guide, namely, that lawyers be permitted to conduct their cases as they may be advised within the limits of the law; and that in considering those limits the practical things that confront attorneys should receive our consideration at least as readily as refined points of procedure.
Is the plaintiff within the limits of the law in bringing his cause here at this time? The Code of Civil Procedure supplies the answer. Section 80, Code ’21, provides: “When a demurrer is decided, either in term time, or va.cation, the court or judge shall immediately cause the decision thereof to be entered in the reco,rd, and may proceed to final judgment thereon in favor of the successful party, unless the unsuccessful party shall plead over1 or amend upon such terms as shall be just, and the court or judge may fix the time for pleading over and filing amended pleadings; and if the same be not filed within the time so fixed, judgment by default may be entered as in other cases.” Section 425, Code ’21, provides: “Writs of error shall lie from the supreme court to every final judgment, decree or order of any county court, district court or juvenile court, in all actions, suits and proceedings. ” Certainly, under section 80, a final judgment was properly to be entered against the plaintiff when he refused to plead further and elected to stand on his *584amended complaint, and certainly by tbe positive words of the judgment order a final judgment was entered against him. Our duty, therefore, and our only duty, should be to determine whether that judgment should be sustained.
Our inquiry' into the provisions of the Code need not, however, cease with a consideration of the sections mentioned. Section 243, Code ’21, is directly applicable to the facts here and should be held to be controlling. That section reads: 1 ‘ In an action against several defendants, the court may, in its discretion, render judgment for or against one or more of them, allowing the action to proceed against the others, whenever a several judgment is proper.” It will not be questioned, I presume, that the issues below would have made a several judgment proper, and it therefore follows that the writ of error here should be disposed of upon its merits. The very point was before the- Supreme Court of California in Rocca v. Steinmetz, 189 Cal. 426, 208 Pac. 964. That was a tort action against two- defendants and the trial court having determined that no action was stated against one of the defendants rendered judgment in his favor. From this judgment the plaintiff appealed and upon motion to dismiss the appeal the court overruled an earlier and contrary decision (Nolan v. Smith, 137 Cal. 360, 70 Pac. 166) upon the ground that no consideration had been there given to the provisions of section 579, California Code of Civil Procedure. That section of the California Code is identical with our section 243 above set out. Referring to the Nolan case, and discussing the one before it, the California court said: “The present action is unquestionably of a character in which a joint or several judg*ment could be rendered. The court, upon finding* that one of the parties is- not liable in the action, could render a judgment in his favor, and then leave the action to proceed against the other parties. That was the course taken by the court in the present case. It held that the allegations against D. H. Steinmetz were not sufficient to *585put him to his defense, and rendered judgment in his favor, allowing the plaintiff to pursue his action against the other defendants. No reason is perceived why this was not proper. The Code expressly allows it, and to hold the person hound to wait until the final judgment against the other party before taking an appeal from the judgment against the first party already rendered is wholly unreasonable, and finds no warrant in any provision of the Code. That the judgment must be final against the defendant in whose favor it is given is essential to the right of appeal. But such a judgment is final within the meaning of that term, as given in section 963. No other judgment can be entered against him, as he will go free if the case goes no further against him. Nolan v. Smith, supra, must be overruled on this point.” And 1 Freeman on Judgments (5th Ed.), p. 60, § 36, says: “And if the decree finally settles the cause as respects one of several defendants, whose interest is not at all connected with the others, it may be deemed final as to him though the case may still be pending in court as to the other defendants. Hence in an action for personal injuries a judgment sustaining a demurrer on the part of one of the defendants and dismissing* the action as to him is final and appealable, though the case is not disposed of as to the other defendant, who has not been served with process and has not appeared. Where the code permits a several judgment in an action against several defendants, leaving the action to proceed as against the others, a judgment finding one defendant not liable is final and appealable though the action is undisposed of as to the others.” Does not our Code so provide, and does not the judgment before us arise upon a state of facts that would warrant a several judgment proper?
It may be that on some occasion this court will have before it a record from which it will be apparent that two or more of the parties below are in like situation with respect to some final judgment or order, and we could then with propriety determine whether all should *586be required to present their writs of error at the same time. That was the problem in Gertz v. Milwaukee Electric Ry. etc. Co., (Wis.) 139 N. W. 312, which is the authority supporting the test of 3 C. J., p. 348, § 97, cited in the opinion of the court in this matter. And see also Gertz v. Milwaukee Ry. etc. Co., 153 Wis. 475, 140 N. W. 312, where the real point involved in the question of determining whether appellate courts have the power to regulate proceedings to prevent successive appeals is set forth. The true rule is not, as the court has done here, to prevent appeals, and to dismiss them when presented, but to require all parties similarly situated, or whose success or failure would be involved, to present their records and arguments at the same time. I do not commit myself to that rule for the reason no such question is presented; my opinion might be to the contrary. My only suggestion is that upon the record before us we should follow the plain language of the Code of Civil Procedure, determine the sufficiency of the amended complaint, and put the trial court and counsel in position intelligently to proceed.