Owings v. Worthington ( 1853 )

Le Grand, C. J.,

delivered the opinion of this court.

The record in this case shows that a decree had been passed by Montgomery county court, sitting in equity, directing the appellee to bring into court, before a day mentioned, a certain sum of money, and that this decree, on appeal, was affirmed.

It also appears that the appellant asked Montgomery county court, as a court of equity, to direct the issue of a fieri facias, which was refused, and the papers were referred to the auditor to state an account. There was no decree in the case awarding any sum of money to the appellant; it merely directed that a certain sum should be brought into court. Until there was a decree directing the payment of a sum of money to the appellant, he was not entitled to a fieri facias.

As to the order referring the case to the auditor to state an account, the appeal must be dismissed. The record does not show the proceedings under which the original decree was passed. In any aspect of the record before us the order appealed from was interlocutory, from which an appeal will not lie. See Clagett vs. Crawford, 12 G. & J., 275. We do not intimate that such an account could be taken after the decree had been passed. The order of reference left the question open for decision on final consideration of the accounts.

We affirm the order refusing the writ of fieri facias, and dismiss the appeal from the one directing an account.

Cause remanded.