Ringgold v. Emory ( 1851 )

Mason, J.,

delivered the opinion of the court.

The Court of Appeals have had no difficulty in coming to the conclusion, that the order of the chancellor, passed the 25th June 1849, from which the present appeal appears to have been taken, was irregular, and of no force and effect whatever.

By the order passed 19th July 1848, in our judgment, the whole case had been dismissed, and thus finally disposed of. This conclusion is not only clear, from the fact that the order, in express terms, dismissed the original petition, the effect of which was to have dismissed all the subsequent proceedings which were based upon that petition, but it appears from the language of the order itself, and by the opinion filed in the cause, that the chancellor had in fact considered the whole proceedings, and designed to dismiss them.

The whole case having thus been disposed of and at an end, it is manifest, that any subsequent order in the premises would have been irregular and inoperative, unless based upon some new formal proceeding, instituted to revive the defunct case, which it is not pretended was done in this instance. From the record before us it is quite manifest, that the last order was passed improvidently, and we are satisfied none such would have passed, if the existence of the previous order . had been brought to the notice of the chancellor.

Upon this point we have no difficulty; but the court feel some embarrassment in determining upon the proper mode, by which they are to get clear of the order presented to them by this appeal. The appellee seeks to avoid it, by a motion to dismiss the appeal. In our opinion the present question is one which cannot be raised upon such a motion. Here is an order or decree passed by the chancery court which upon its face (not to look behind it) appears to be a decree from which an appeal will lie. The appeal was taken in due time, and in due form, as provided by our acts of Assembly, and under such circumstances, we do not see how we can sustain a motion to dismiss.

The regularity or propriety of an appeal is one question, and the subject matter to be considered under an appeal, after it has been regularly taken is another. The first can only be disposed of upon a motion to dismiss; the second must be determined according to its merits. Tlie point directly presented to our view by the argument of counsel, is one which would rather go to the merits, than to the regularity of the appeal.

Enough, however, has been disclosed in the argument of this preliminary question, to justify the court in coming to the conclusion they have already announced.

For the reasons assigned we overrule the motion to dismiss ; and unless the counsel desire to be heard further as to the proper and final disposition to be made of the case, in pursuance of the views already expressed by the court, or can agree among themselves on this point, we will proceed to pass a final order in the case.

Motion to dismiss the appeal overruled.

Motion overruled.