91 W. Va. 243 | W. Va. | 1922
Although the question of appellate jurisdiction of this cause in its present condition has not been raised by a motion to dismiss nor otherwise, it is apparent that the appeal was improvidently awarded and the ruling complained of
The bill seeks construction of a will. In the answer, its principal allegations, if not all of them, are admitted, but new matter is set up in the answer, as ground for affirmative relief. It is averred that the testator was incapable, by reason of mental infirmity,- of making a will, and an issue of devismit vel non is prayed for. In other words, the answer proposes to defeat the claim for relief, by impeachment of the probated will. A demurrer to it was sustained and leave granted the defendants to amend. It was not dismissed, rejected nor stricken out of the record, nor was there any decree upon the bill in any form.
Even an 'interlocutory decree, to be appealable, must carry some sort of a finding into effect. A mere expression of judicial opinion upon some legal question does not suffice, even though recorded by an order entered in the cause. In the most liberal decision upon the question of appealability of interlocutory decrees now recalled, Reed v. Cline, 9 Gratt. 136, the decree directed an issue out of chancery. It ordered something to be done, and, in so doing, incidentally applied principles which were deemed to have laid the basis for determination of the controversy. A decree merely sustaining a demurrer to a bill is not appealable. Bosworth v. Wilson, 57 W. Va. 80; Commercial Bank v. Rucker, 2 Va. Dec. 350; London etc. Co. v. Moore, 98 Va. 256. Nor is an order overruling a demurrer appealable. Parsons v. Snider, 42 W. Va. 517. If this answer could be regarded or treated as an original bill, the order sustaining a demurrer to it, but not dismissing it, would not come within the appellate jurisdiction of this court.
There is no right of appeal from an interlocutory decree, unless given by statute. Bosworth v. Wilson, cited. One of the several instances in which it is allowed, is the ease of a decree settling the principles of the cause, but the decree we are asked to review does not settle the principles of the cause, within the meaning of the statute. It simply passes
For the reasons stated, the appeal will be dismissed as having been improvidently awarded.
Appeal dismissed, as invprovidiently awarded.