Boteler v. State ex rel. Creditors Chew & Co. , 7 G. & J. 109 ( 1835 )

Chambers, Judge

delivered the opinion of the court.

We do not think the appellants counsel have succeeded in distinguishing this case, from those, which fall within the well established rule, that no appeal can be prosecuted to this court, until a decision has been had in the court below, which is so far final, as to settle, and conclude the rights of the party involved in the action, or denying to the party the means of further prosecuting or defending the suit.

The cases of Munnikuyson vs. Dorsett's Adm'x, 2 Harr, and Gill 374, and State vs. Cox. Ib. 379, were referred to as sustaining a contrary doctrine. But in each of those cases, the defendant was discharged without day; the plaintiffs claim was entirely defeated, and in short, the judgment was a final j udgment for defendant.

It is not denied that this case was within the general jurisdiction of the court, and that at some stage of the proceeding it was competent for the court, to order an amendment of the pleas, and to grant a new trial; and the sole question argued is, whether the orders passed were illegal and erroneous, because of the particular predicament of the cause, at the moment when they were passed.

To permit an appeal from any decision of the court below, which does not finally settle the rights of the party, or conclude the cause, would enable either plaintiff, or defendant to protract the suit to an almost indefinite period. If by an allegation, that the court has exceeded its powers, this court can be put to an investigation of the case, it is plain, the allegation may be made in reference as well, to one order, as another, and in short, to any and every order, and as the appeal must stay the hands of the court below, the suit would be interminable.

It is time enough for a party to apply to this court for redress, when it is ascertained that he is to be injured by the judgment of which he complains. Certainly that fact does not appear in this case. For aught we can learn from the record, the defendants may obtain the final judgment of the court, and be entirely discharged from the claim of the plaintiff. Should the result be otherwise, when the proceedings below, shall be terminated, an appeal will then lie, and all the errors of the court below, in the whole progress of the cause, will be proper subjects for complaint of the party, and for the correction of this court.