Tripp v. Magnus ( 1890 )

The opinion, of the court was delivered by

Dunbar, J.

In this case, the motion of the defendant in error to dismiss this appeal, as shown by his brief, is based on but two grounds: (1) Because no notice of the appeal from the judgment reudered in said cause had ever been given in open court, or filed and served on defendant in error or his counsel; and (2] because no assignment of errors has been filed or served upon defendant in error or his counsel within the time required by rule five of this court. And the question whether or not the judgment or order appealed from was not such a final decision as, under the organic act, could be appealed from, was not directly raised in the motion.

But from the arguments in the briefs and the oral arguments of the counsel on both sides, it appears that this was the main question at issue; and, from such arguments and from what the court can gather from the transcript, this is the main question before this court; and thus considering it, this court, especially in view of the uniform decisions of this court during its territorial existence, will hold that this case does not fall within the provisions of § 1869 of the Bevised Statutes of the United States; and that the order of the court in sustaining the demurrer is not such a final decision as is contemplated by the statute, and from which an appeal can be taken to this court.

The motion to dismiss this appeal is sustained, with costs of this court.

Anders, C. J., and Hoyt, Scott and Stiles, JJ., concur.