Brittain v. Foley ( 1886 )

Opinion by

Judge Pryor:

While it is often difficult to determine what is a final judgment it seems to us in this case that the judgment rendered on the third of March, 1880, is conclusive as to the rights of the parties. The issue involved was as to the right of Foley and wife to a homestead in the premises. The cause was submitted for judgment, and the court held that the parties were entitled to a homestead and directed it to be set apart for them, by the commissioners before any sale was made to satisfy the mortgage debt. It was not merely an opinion that they were entitled, but the judgment was directed to be executed and the homestead set apart by commissioners before the sale was ordered. It was a denial of the right on the part of the creditor to subject it and settled the claim of the debts. It is as much a final judgment as if they had claimed an interest in a fund in trust, and the court had directed the commissioner to collect the money and pay over that interest to them. It was not a mere opinion expressed by the court, but a judgment directing the commissioner to execute it. If instead of claiming a homestead they had claimed one-third of the land and the court had adjudged that they were entitled and directed commissioners to allot it, it seems to us the judgment would have been final, except as to any error that might be committed in making the division. The judgment being final the appeal should be dismissed.