Harrison v. Farnsworth , 48 Tenn. 751 ( 1870 )

Deaderick, J.,

having been of counsel, did not sit. J. T. Shields, Sp. J., delivered the opinion of the Court.

In these cases, which were consolidated and heard together in the court below, the defendant, Farnsworth, prayed an appeal from the decree, pronounced on the 14th of May 1870, which was granted by the Chancellor. A motion is now made to dismiss the aj>-peal, on the ground that the said decree was not final. It is true that this decree is, in some respects, interlocutory, and that questions as to some of the parties are reserved for further order; but as to the defendant, Earnsworth, it is in substance, a final disposition of the cause, because it adjudicates conclusively all the questions in which he has an interest. But, notwithstanding this, he could not appeal from the decree, as a matter of course and of right, until a final adjudication of the rights and equities of all the other parties. Delap et al. v. Hunter et al., 1 Sneed, 101. The right to prosecute an appeal or writ of error depends upon the finality of the decree, and no appeal or writ of error lies from any interlocutory decree or order. This is the general rule. -But to this general rule the Code, 3157, gives to the inferior courts the power, in their discretion, to make exceptions in certain specified cases, among which is where the decree settles the rights of one party, and not of all; in which, case the Chancellor may, in his discretion, allow the party whose rights are settled to appeal. Such is clearly the present case. It is true,' the entry of the prayer and grant of the appeal does not state that the appeal was granted in pursuance of this provision of the statute; but it does appear that the appeal was expressly granted; and when this Court can see, as we can in this case, from the record, that a proper state of facts existed for the exercise of the discretionary power so vested in the Chancellor, we will presume that the appeal was granted under and in pursuance of the statute.

The motion to dismiss is, therefore, disallowed.