Hurst v. Saunders , 5 App. D.C. 66 ( 1894 )

Mr. Justice Morris

delivered the opinion of the Court:

It is difficult to see by what rule of law this appeal can be sustained.. Nor are we enlightened in this regard by the appellant’s brief, which fails wholly to comply with the rule of this court in regard to the assignment of errors — a default for which we would be justified in dismissing the appeal, even if the appeal were well taken. The order appealed from is plainly an interlocutory order, from which it is well settled no appeal will lie, and it does not fall under the category of interlocutory orders from which, under the eighth section of the act creating this court, an appeal is specially provided. For it is no't an order by which “ the possession of property is changed or affected.” And of course it cannot be considered under the discretionary clause of that section, for the discretion of this court has not been exercised upon it, and there has been no application to this court for the exercise of that discretion.

The order appealed from is not even the dissolution of an injunction, but merely of a temporary restraining order, and while the granting of an injunction is enumerated among the orders that affect or change the possession of property, it is difficult to see how the dissolution of a restraining order can by any course of reasoning be brought into the same category.

The appellant in his brief has confined himself entirely to a discussion of the cause upon its merits. Even if we assumed that we could review the cause upon its merits upon such an appeal as this, it is not quite apparent that the appellant is entitled to the relief for which he prays, or to any relief whatever, upon the case which he makes, when the equity of his bill, if any there is in it, has been wholly sworn away by the answer. The lease which he seeks to cancel has expired by its own limitation, is at an end, and no longer can be a subject for the action of a court of equity in the way of cancellation. It is unnecessary to try to cancel that which no longer has existence. And if the appellant's equity consists in the enforcement of his contract for the purchase of the property, even upon the assumption that he has a right to such enforcement, he has not made the proper parties to his suit.

On the ground that the order sought to be reviewed is not an appealable order, we must dismiss the appeal, with costs, and remand the cause to the Supreme Court of the District of Columbia. And it is so ordered.