Byington v. Moore

BeoK, J.

I. We find no express authority conferred by statute upon the court to appoint an attorney to conduct prosecutions of this character. An attorney may be appointed to draw up an accusation against a member of the bar for criminal or unprofessional conduct, looking to his disbai-ment; (Code, § 219;) but it is probable that the court, in the exercise of its inherent authority, could require a member of the bar to discharge such duty. But the exercise of such authority rests in the sound discretion of the judge. The abstract before us fails to show any facts upon which we may find, or even infer, an abuse of such discretion, indeed, no facts are presented to us further than are alleged in the pleadings and motion. We are required rather to presume that the judge rightly exercised his discretion.

II. The cause, however, may be disposed of upon these grounds: The order of the court overruling the motion does not affect any substantial right of plaintiff in the proceedings, and “ does not determine the action, and prevent a j udgment from which an appeal may be takennor does the order “ involve the merits, and materially affect the final decision of the cause.” In the absence of these conditions, no appeal can be taken. Code, § 3161.

The plaintiff’s appeal will therefore be

Dismissed.