Miller v. Hay

Smith, C. J.,

delivered the opinion of the court.

This suit was instituted by the state revenue agent to recover from the appellees a debt alleged to be due by them to the county of Washington. The board of supervisors of Washington county intervened, by petition, alleging, in substance, that the suit was begun by the revenue agent after the appellees had arranged to borrow money with which to pay the debt due by them to the county; that the further prosecution of the suit by the revenue agent was inimical to the best interests of the county,; and prayed “that this litigation be taken out of his hands and the control thereof he placed in the hands of the hoard of supervisors. ’ ’ This motion was sustained by the court below after hearing evidence in support thereof. An appeal, was granted the complainant by a judge of this court after it had been denied by the court below.

The case now comes on to be heard on motion by the board of supervisors to dismiss the appeal on the ground that the order appealed from is interlocutory, and will not lie under section 17, 'chapter 151, Laws of 1924, which provides that an appeal from an interlocutory order or decree may be granted “in order to settle the controlling principles involved in the cause, or in exceptional cases to avoid expense and delay.”

Assuming for the purpose of the argument that the order appealed from is interlocutory and not final, if the court below erred in granting it, both expense and delay will (result if the decision of that question must await the. final outcome of the case, and the removal of a complain-, ant and the substitution of another is both unusual and exceptional. Consequently, the appeal is within the provisions of the statute.

The motion will he overruled.