Overby v. Gay , 56 Ky. 144 ( 1856 )

Judge Stites

delivered the opinion of the court.

This court has appellate jurisdiction over the final orders and judgments of all other courts of this commonwealth, except in certain cases enumerated in the 16th section of the Civil Code.

This appeal is prosecuted by consent of parties, from an interlocutory judgment, or order of the circuit court, overruling a motion to discharge an attachment issued upon a petition in ordinaiy. No judgment is rendered upon the demand in the petition, no order of sale, nor any final action of the court determining the rights of the parties to any extent.

The order of the circuit court merely determines that, in its opinion, the grounds relied on, upon the motion to discharge, are insufficient. The defendant is not precluded thereby from renewing his motion at the time of trial.

It has been held by this court that parties may, by consent, make final, for purposes of appeal, a decree or order of the circuit court that otherwise would be deemed interlocutory, and such consent has been deemed sufficient to confer jurisdiction here. But these cases have been exceptions to the general rule that consent cannot give jurisdiction; and in every such case some right in controversy was determined, and the power of the lower court over its decree or judgment was merely continued to ascertain the extent of such right. (4 Monroe, 415; 6 J. J. Marshall, 354; 1 B. Monroe, 150.)

They furnish, therefore, no precedent for this case. The defendant below, as suggested, is not precluded' by this appeal from renewing his motion to vacate or discharge the attachment on the trial of the cause; nor would the circuit be concluded by this appeal from entertaining such motion.

2 An order of a circuit court overruling amotion to discharge an attachment is not such a final judgment as authorizes an appeal, even tho’ the parties consent to the apgpeal.

The action might thus be progressing before this and the circuit court at the same time; and the strange and anomalous case thereby presented, of two tribunals adjudicating upon the same action at one and the same time. Such might, and doubtless would be, one of the consequences resulting from the establishment of a rule allowing the consent of parties to impart finality to every or any interlocutory order of the circuit or other inferior court for the purpose of testing its correctness by appeal to this court. Others, equally absurd and inconvenient, might be enumerated. It has been only in cases where the interlocutory order involved and determined some substantial right in controversy that an agreement of parties making it final has been deemed sufficient to give this court jurisdiction, and we are not inclined to enlarge the rule.

We are therefore of opinion that the order complained of is not such a final order of the circuit court as confers jurisdiction upon this court, and that the consent of parties agreeing that it shall be so regarded does not make it so.

The appeal is dismissed.