Jones v. Davenport

| Tenn. | Dec 15, 1869

George Andrews, J.,

delivered the opinion of the Court.

This is an action of trespass brought in the Circuit Court of Franklin County, to recover damages for cutting timber on the land of the plaintiffs.

After declaration and plea filed, the defendant, Davenport, filed a sworn petition in the cause, under the Acts of Congress of March 3d, 1863, and May 11th, 1866, stating that the alleged trespasses were committed during the late rebellion, under and by virtue of orders issued by Major-General George H. Thomas, commanding the Department of the Cumberland, and for the purposes of the United States military railroads; and praying that the cause be transferred to the Circuit Court of the United States for the District of Tennessee.

Upon this petition, the Circuit Court of Franklin County ordered that the cause be transferred to the Circuit Court of the United States, at Nashville; and that the Clerk certify the papers and records in the cause to that Court; to which order the plaintiff excepted, and prayed an appeal to this Court, which was granted.

We notice but one of several questions raised upon this appeal.

The judgment appealed from is not a final one. The cause is not finally disposed of; no adjudication is made of any question of fact or law in the case ; no judgment for costs was rendered, or could have been rendered. It is true the case is finally disposed of, so *147far as the Circuit Court of Franklin county is concerned, but not by a final judgment. It is a proceeding analogous to the change of venue provided for by the statutes of this State, and which does not involve any final judgment in the case. The laws of the United States under which this proceeding is had, are also the laws of this State, and under them the cause is simply transferred by a purely interlocutory order from one tribunal to another. If we can control the action of inferior courts, in granting orders of this nature, in any mode, it cannot be done upon an appeal from the order.

The appeal must be dismissed upon the ground that an appeal will not lie from the order in question, and the cause remanded to the Circuit Court of Franklin County.