Palmer v. Spaulding , 34 Mont. 1 ( 1906 )

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court.

This action, brought for the purpose of recovering the possession of certain personal property, originated in a justice’s court of Gallatin county. From a judgment in plaintiff’s favor, defendant appealed to the district court. Plaintiff moved that court to dismiss the appeal on grounds the merits of which need not be noticed. The court sustained the motion, causing to be entered in the minutes the following order: “Motion to dismiss, heretofore taken under advisement, is at this time sustained by the court.” From this order the defendant thereupon attempted to appeal to this court as from a final judgment.

In this court the plaintiff has interposed an objection to the consideration of the appeal on the merits, on the ground that this court has no jurisdiction. It is clear that the order is; neither in form nor substance a final judgment; and, not being in itself an appealable order (Code Civ. Proe., sec. 1722, amended by Act of 1899 [Session Laws 1899, p. 146], this court, has no jurisdiction to consider the case upon the merits, and plaintiff’s objection must be sustained.

The appeal is therefore dismissed.

Dismissed.

Mr. Justice Milburn and Mr. Justice Holloway concur-