114 S.W.2d 789 | Tenn. | 1938
This is an action to recover for personal injuries suffered in an automobile accident while driving over a road under reconstruction by defendant Anz, as a contractor working for the State Highway Department. Defendant Bible is the engineer in charge, and defendant casualty company is surety bondsman for the contractor.
The trial judge sustained demurrers of all defendants except Anz, and granted this appeal from his order dismissing *52 as to them. The action is yet pending in the trial court against Anz on his plea of not guilty.
A motion to dismiss the appeal must be sustained on the authority of Gavin v. Shelby County et al.,
It is, of course, well settled that an appeal as a matter of right lies only from a judgment which is final as to the party appealing. It is plain, also, that the application of Code, section 9038, authorizing discretionary appeals from interlocutory decrees, is limited to equity cases, and cannot be invoked in an action for tort. This appears on the face of this statute, and see Payne v. Satterfield,
Moreover, not even a discretionary appeal otherwise authorized under section 9038, lies from a judgment or decree sustaining a demurrer and dismissing as to one or more of the defendants and leaving the case undisposed of in the trial court as to others.Hunter v. Gardenhire, 78 Tenn. (10 Lea), 87; Lang v.Ingalls Zinc Co.,
The rule is general that a judgment is not final which settles the case as to a part only of the defendants. 2 Am. Jur., p. 866; 80 A.L.R., 1192.
In the instant case it is clear that the judgment plaintiff in error has appealed from did not dispose of his action against Anz, one of the defendants, and this judgment is, therefore, not a final disposition of the case. As said in Younger, Admr., v.Younger,
The reasonableness of the rule finds illustration here. The contractor, Anz, is the primary alleged offender. Should a trial on the merits result in his favor, there would probably be no attempt to prosecute the claims against the other parties. And, on the other hand, if a judgment should go against Anz, and he should pay it, no appeal would be prosecuted.
Our attention is called to the recent case of Tyler v. ObionCounty et al.,
It is also suggested on the brief that the opinion of this court in Bozeman v. Naff,
The appeal is premature and unauthorized and must be dismissed. *55