Barkley v. Logan

2 Mont. 296 | Mont. | 1875

Wade, C. J.

This is an action for a perpetual injunction to restrain appellants from the use of certain waters of Indian creek, Jefferson county. It appears that respondent and appellants are the owners of ditches that convey the waters of said creek to the mines in the vicinity. The findings of facts by the court show the ownership of the ditches, the dates of their construction, their carrying capacity, in miners’ measurement, and their priorities. The decree is based upon such findings.

The appellants, being satisfied with the greater portion of the decree, gave notice of an appeal from that part which awarded priority to the ditch known as the Cedar Gulch ditch over that known as the South Bowman ditch.

The first question for determination is this: Can an appeal be taken to this court from a part of a final judgment? Can a judgment be severed into distinct parts and an appeal be taken from each, at different times, without bringing the whole judgment before the appellate court ? The appellants have appealed from a part of the judgment now, but this'does not preclude the possibility of an appeal by them at another time from some other portion of the decree.

The appellate jurisdiction of this court is defined by law, and the statutes confer jurisdiction in a particular manner in certain cases. In no other way than by following the law can this jurisdiction be acquired.

Sections 869 and 880 of the Practice Act define the appellate jurisdiction of this court, and, in substance, declare that an appeal may be taken from a final judgment; from an order granting or refusing a new trial; from an order granting or dissolving an injunction, or attachment; from any special order made after final judgment, and from inteiloeutory judgments in actions of partition. In these and in no other cases has this court appellate jurisdiction.

How is this jurisdiction acquired ? Section 370 of the Practice Act provides, that an appeal shall be made, by filing with the clerk of the court in which the judgment or order appealed from is' entered, a notice, stating tbe appeal from tbe same, or some specified part thereof, and serving a copy of tbe notice upon tbe adverse party, or bis attorney. Tbe notice defines wbat is appealed from, and controls tbe jurisdiction of tbe appellate court. If tbe appeal was from a final order made after judgment, it would not bring tbe judgment before tbe court; if it was from a part of a decree, it would not give jurisdiction to this court over tbe whole decree.

"We do not think tbe statutes contemplate an appeal from a part of a judgment. Sections 369 and 380 define tbe appellate jurisdiction; and section 370, providing bow an appeal shall be taken, does not enlarge this jurisdiction. Tbe sections conferring jurisdiction must control, instead of wbat is incidentally said in tbe section providing bow tbe appeal shall be taken.

When an appeal is taken from a judgment, it must be from tbe whole of it. Tbe statute does not authorize tbe taking of a judgment into an appellate court for review by piecemeal. The appeal must bring tbe whole judgment before tbe appellate court. This court cannot reverse or affirm tbe fragment of a judgment. Jurisdiction for this purpose has not been conferred. If tbe whole decree is not before this court, bow can it know tbe effect of its action, in reversing or affirming a portion of it, upon the remainder over which this court has no jurisdiction, because there is no appeal therefrom ?

Tbe appellants appeal from that part of the decree which gives priority to tbe Cedar ditch over tbe Bowman ditch. "Wbat effect would a reversal of this part of tbe decree have upon tbe remainder thereof? We cannot say. The decree is not here so that we can notice it. Would such a reversal require a modification of tbe other part of tbe decree? It might. We cannot modify it while tbe main portion of the judgment is in tbe district court and subject to its jurisdiction. Suppose we' should reverse tbe part of the decree appealed from, and send it back for a new trial, and tbe appellants should then appeal from another portion of tbe decree, where would tbe case end ? When would tbe rights of tbe parties be finally determined ?

We bold that this court, under tbe statute, has no jurisdiction to bear an appeal from a part of a final judgment, unless tbe whole judgment is befoie it. Tbe whole judgment must be appealed from to give- this court jurisdiction over any particular portion. In Canter v. American, Ins. Co., 3 Pet. 316, Mr. Justice Story says: “ It is of great importance to the due administration of justice, and is in furtherance of the manifest intention of the legislature, in giving appellate jurisdiction to this court upon final decrees only, that causes should not come up here in fragments upon successive appeals. It would occasion very great delays and oppressive expenses.” And the principle applies as well to successive appeals from portions of a final decree as to appeals upon matters arising before the final decree is rendered. In the latter case the appeal is not allowed, because the final decree has not been rendered, and in the former ease the appeal should be disallowed, because it only brings fragments of the decree before the court. For the purpose of determining the rights oí the parties, the portion not appealed from may as well never have been rendered.

Freeman on Judgments, says (§ 33): “‘The policy of the laws of the several States, and of the United States, is to prevent unnecessary appeals. The appellate courts will not review cases by piecemeal.” He is speaking of appeals before final judgment, yet we believe that the same reasons apply to prevent piecemeal appeals after final judgment. This must be the ease where the statute specially prohibits such appeals, by authorizing an appeal from a final judgment, which can only be construed to mean the whole thereof.

The party appealing must bring the whole decree before the appellate court, otherwise it has no jurisdiction to hear the case, and may specify, in his notice of appeal, the portion of the decree he wishes to reverse. He cannot sever the decree, and leave that portion of it favorable to himself in force in the district court, and appeal from that portion adverse to him.

There being then no appeal authorized by the statute, it is dismissed, and this cause is stricken from the calendar.

Appeal dismissed.