Case v. Ingle, 2 Indian Terr. 309

Case v. Ingle

2 Indian Terr. 309 | Ct. App. Ind. Terr. | 1899

Thomas, J.

In this case we are confronted by the preliminary inquiry, upon the motion of the appellee to dismiss the appeal, as to whether or not the judgment appealed from is a final judgment. In order that a judgment should be final, it should settle all of the issues involved as to all of tbie parties. In the case of Horner v. State, 27 Ark. 113, the court, in passing upon the same question, among other things, said: “It has been so often decided and fully settled in this court that an appeal will lie only from a final order or judgment, that argument or reference to this is unnecessary; and to produce an. argument to show that an order overruling a demurrer to the bill is not a final judgment to the cause would not be expected. The chancellor should have proceeded to render a decree upon the whole case before him. ’ ’ So, in the case at bar,’ when the demurrer of the plaintiff to the answer of the defendant R. Y. Mangum, had been sustained, and he refused to answer further or to amend, the trial court should have proceeded to enter up a judgment against him for the amount of the note sued for *312and costs. If we should now determine whether or not the amended answer of Case and Walker stated facts sufficient to constitute a defense to the note and mortgage sued upon, the cause would even then have to go back to the trial court to be disposed of as to the other defendant and appellant, R. Y. Mangum, and this probably would necessitate a trial of this cause twice in this court. “The rule restricting appeals to cases where a final judgment has been rendered is necessary to prevent the division of a case into parts, and to prevent a multiplicity of actions. The rule is in direct harmony with the principle * * * that cases must be decided as an entirety, and by one tribunal. ” See Elliott, App. Proc. § 80. The motion to dismiss the appeal of R. Y. Mangum is sustained, and the court of its own motion dismisses the appeal of Case and Walker, for the reason that the cause has not been finally disposed of as to all the parties and all the issues involved in the trial court. Appeal dismissed, and case remanded.

Springer, C. J., and Clayton and Townsend, J. J., concur.