Butte & Boston Consolidated Mining Co. v. Montana Ore Purchasing Co.

27 Mont. 152 | Mont. | 1902

MR JUSTICE PIGOTT

delivered tbe opinion of tbe court.

Tbe defendants demurred to tbe complaint, aüd tbe plaintiff bas in form taken an appeal from an order made by tbe district court, of wbicb tbe following is a copy: “Tbis day demurrer herein is argued by counsel and by tbe court sustained, and, plaintiff not desiring to amend complaint, judgment is by tbe court entered in favor of defendants and against plaintiff for costs of suit.”

Tbe defendants move a dismissal on tbe ground that tbe order or judgment is not appealable. Tbe plaintiff contends that tbis order of tbe court finally determined tbe rights of tbe parties, and is therefore a final judgment, and appealable. We do not think it is. Even if it be conceded that for tbe word “entered” was intended tbe word “rendered,” tbe fatal defect would not be cured. That tbe court thereby finally determined tbe rights of the parties does not distinctly appear. It omits to state that tbe plaintiff should take nothing by tbe action, or that tbe action be dismissed, or that tbe defendants go thence without day, or anything of similar import. To constitute a final judgment there must be a disposition of tbe subject-matter, and not merely of an incident; “the form of tbe judgment is immaterial;, but in substance it must show intrinsically and distinctly, and not inferentially, that tbe matters in tbe record bad been determined in favor of one of tbe litigants, or that tbe rights of tbe parties in litigation bad been adjudicated. Tbe costs are regulated by statute, and are an incident or appendage of tbe judgment, and generally are recoverable by tbe victor in tbe contest. But, as an incident, they cannot be substituted for tbe principal; and a judgment for their recovery is not a decision of tbe matter at issue; and it is, therefore, no such final judgment as can, by law, come within tbe revisory power of tbis court.” (Scott v. Burton, 6 Tex. 322, 55 Am. Dec. 782; 1 Black on Judgments, Sec. 31, note 38.) We may remark parenthetically that, where tbe costs are tbe principal, an order or judgment awarding them may be appealable. None of tbe cases cited by tbe plaintiff from tbe reports of this court support tbe contention that an appeal lies from an order such as tbe one quoted.

Let tbe purported appeal be dismissed for tbe reason that tbe order or judgment from which it has been taken is not appeal-able.

Dismissed.