27 N.Y.S. 461 | N.Y. Sup. Ct. | 1894
This action was in the nature of a creditor’s bill. A portion of the relief sought was that an accounting should be ordered to be made, by the estate of Lucy G. Russell, of the railroad stocks, bonds, securities, and other property, deposited with Edward G. Clark, and transferred to her, and of the proceeds and avails thereof, and all other moneys and property received by her, directly or indirectly, from Dorr Russell, and of the rents, issues, and profits thereof, and that, if it should appear that Lucy G. Russell paid anything from her own separate estate for the Bowers mortgage, and that her estate should be credited and allowed the moneys so paid, then that an accounting should be ordered, and an account be taken of the moneys so paid, and also of the moneys, income, property, and profits received by her, or by any other person for her use, or by the defendants, or either of them, and of the balance, if any, remaining unpaid, and due to her, or her estate, to the end that the said farm or property might be sold, subject to her lien for such unpaid balance, and the proceeds applied to the payment of the plaintiff’s judgment; that, apon such accounting, the defendants, and the estate of Lucy G. ■Russell, be charged with any or all moneys or property paid by Dorr Russell, directly or indirectly, for the Clark mortgage, and with the railroad stocks, bonds, securities, and other property, deposited by Russell with Clark, and subsequently delivered to Lucy G. Russell, or to or for her benefit. The referee found, as .a conclusion of law, that the plaintiff- was entitled to the accounting demanded in her complaint, and the judgment entered upon ■such report contained a provision to that effect.
The appellants, in their brief, claim that the judgment directed by the reféree, and entered upon his report, is not final, but a mere interlocutory judgment. We think this contention must be sustained. Some of the earlier cases seem to hold a contrary doctrine, but the case of Dorchester v. Dorchester, 121 N. Y. 156, 23 N. E. 1043, which is the latest case that has come to our notice, is so nearly like the case at bar that we must either disregard that case as an authority, or hold, with the appellants, that the judgment appealed from is interlocutory, and not final. We think the judgment must be treated as interlocutory. Therefore, at the threshold of the investigation of this case, the question presents itself, whether an appeal could properly be taken from such a judgment. It not being a final judgment, it was not appealable, under the provisions of section 1346 of the Code of Civil Procedure. And, as an inspection of the judgment shows that it was not rendered at a special term, circuit or trial term of this court, but upon the report of a referee, it was not appealable under the provisions of .section 1349 of the Code, as it stood when this appeal was taken. It appears from another appeal book, which was handed up on
Assuming, then, as we think we must, that the judgment was entered upon the report of a referee, and that it was interlocutory, and not final, it is quite manifest that the only method of reviewing it, which existed when this appeal was attempted to be taken, was by a motion for a new trial upon the exceptions, under section 1001 of the Code. While section 1349 of the Code has since been amended by an act passed May 6, 1893, to take effect the 1st of September, 1893, so as to give the right of appeal from a judgment thus entered, yet, as the appeal in this case was taken in March of that year, the defendants had no right to appeal from such a judgment, under the statute as it existed at the time when the appeal in this case was taken. Under these circumstances, we see no way to properly dispose of this case except to dismiss the appeal.
Although the respondent has raised no question as to the appellants? right to appeal, we are unable to perceive how such omission confers upon this court authority to determine the questions sought to be reviewed, in the absence of any law authorizing the appeal. As a general rule, the right of appeal is purely statutory, and can be taken only from such judgments as are designated, expressly or impliedly, by the statute authorizing the appeal, and it must be taken within the time and by the mode prescribed. Parties cannot appeal by their own acts, where no appeal is authorized by law, nor can they, by their own acts, create a right of appeal, as jurisdiction of appeals is created by law. To permit parties to create such a right would be a violation of the rule that parties cannot create jurisdiction of the subject by consent. Elliott’s App. Proc. § 75 et seq. This question is not one of mere irregularity, but relates to the right of the party to appeal from such a judgment, and, hence, to the authority of this court to determine the questions involved. The question is not one of practice, but of power; is not one of discretion, but of jurisdiction. In Kundinger v. City of Saginaw, 59 Mich. 355, 364, 26 N. W. 634, it was held that the right to appeal from one tribunal to another is statutory. In Kramer v. Railroad Co., 5 Ohio St. 140, 147, in discussing the question of the determination of freeholders, in condemnation pro
Appeal dismissed with costs. All concur.