¶1(after stating the facts.) Under the Constitution of this State the widow is entitled to the homestead of her deceased husband, if he was a resident of this State at the’ time of his death, for and during her natural life. His minor children are entitled to share it with her. But it can not exceed one hundred and sixty acres. Constitution of 1874, art. 9, § § 3-6. Mrs. Solomon,averring that the land in controversy constituted the homestead of her husband at the time of his death, claims this right in the second paragraph of her answer, and in so doing set up a good and valid defense.
¶2In the third paragraph of her answer Mrs. Solomon claims the right to hold the land in controversy under her right to dower therein. But her dower had not been assigned to her, and she was not entitled to hold possession in that right, if she could not do so under the statute which provides that “a widow may tarry in the mansion or chief dwelling house of her husband, for two months after his death;” and if her dower is not assigned within that time, she may continue in possession thereof, together with the farm thereto attached, free of all rent, until it is set apart. Sand. & H. Dig. § § 2536, 2537. There is nothing said in the third paragraph of -her answer about a mansion or chief dwelling house and a farm thereto attached, and it is fatally defective, and the demurrer to it should have been sustained.
¶3The answer of W. C. Eagle and others is defective. Is it demurrable? The allegations in the first, second and fifth paragraphs thereof, if true, constitute a valid defense, but the facts necessary to constitute it are defectively stated. For instance, in the first paragraph they say that Mrs. Fewell had no right to convey the one-fifth interest in controversy. Why not? She was an heir of Dan Eagle, from whom all the parties to this action derive title. The facts which show that she had no right to convey it should have been stated. For the same reason the allegation in the same paragraph that Solomon could not convey the same is defective. In the second paragraph of their answer they say that the deed executed by Webster to plaintiff is void, and conveyed no title. Plaintiff alleges in his complaint that Webster was lawfully appointed trustee to sell the land and sold it. Why is his deed void? In the fifth paragraph of their answer they allege that plaintiff’s claim is barred by the statute of limitations. Plow is it barred ? They state the effect or conclusions from facts when the facts should have been stated. These defects could have b'een reached by a notice to make the answer more definite and certain, and not by demurrer.
¶4W. C. Eagle and others fail to set up a defense in the third paragraph of their answer. They allege that Eettie Eagle was occupying the land in controversy as a homestead, and fail to show that she was a minor at the commencement of their action, or had a right to hold it as a homestead. They also fail to set up a defense in the fourth paragraph of their answer, because they allege seven years’ adverse possession, and fail to state, that the seven years were before the commencement of this action. .
¶5The demurrer to the third and fourth paragraphs of the answer of W. C. Eagle and others should have been sustained, and 'overruled as to the other paragraphs.
¶6The circuit court erred in rendering judgment against the plaintiff for all costs of the action when it was still pending; there being no dismissal. It should have been for the costs of the demurrer. But, as it was not a final judgment, no appeal from it lies. Guess v. State, 6 Ark. 147; Crockett v. Lewis, 66 Mo. 671; Evans v. Russell, 61 Mo. 37; Reynolds v. Tecumseh, 48 Neb. 785; 2 Enc. Law & Pro. 593, and cases cited. The appeal was prematurely taken. The- case is still pending in the circuit court, and it can retax costs and permit such amendments of the pleading as it may deem proper. What we have said was for the purpose of aiding in the disposition of the case in the court below.
¶7It is ordered .that the appeal be dismissed at the cost of appellant.