Maple v. Williams

98 P. 848 | Idaho | 1908

SULLIVAN, J.

This action was brought for an injunction ) restrain the defendant from evicting and ejecting the plain-ff from a certain leased farm, and from removing certain íattels and personal property thereform, and to recover the un of $3,000 damages occasioned by the alleged breach of the ivenants of the lease under which said farm and personal L’operty were held. Summons was issued and placed in the inds of a constable on March 5, 1908, and personally served i the 7th of that month. Thereafter a motion to quash said immons was made and filed on the 27th of said month, coun¡1 for the defendant specially appearing for the purposes of lid motion. On March 30th, counsel for appellant filed his pplication for default of the defendant on account of his lilure to answer within the time required by the summons, i compliance with said request, the clerk of said court en-red the default of the defendant, and thereupon the clerk Ltered judgment against the defendant, by default, for 5,000, that being the full amount of damages prayed for in .e complaint, and for costs of suit. Thereafter the motion to lash was heard by the court, and on April 28,1908, the court Ltered an order sustaining said motion, and set aside, quashed id held for naught said summons, to the making of which der the plaintiff duly excepted. This appeal is from that der.

A motion to dismiss the appeal has been interposed by the spondent, based on the ground that the order quashing said rnmons is not appealable. In support of said motion, coun1 cites subd. 2, sec. 4807, Rev. Stat. That subdivision enuerates certain orders from which an appeal may be taken to e supreme court from the district court. The order apsaled from is not one of the orders enumerated therein, and r that reason counsel contend that said order is not an apelable order. Counsel for appellant contends that said orir is appealable under the provisions of sec. 9, art. 5, of the ite constitution, which section is as follows:

“The supreme court shall have jurisdiction to review upon ipeal, any decision of the district courts, or the judges ereof.....”

Under that provision of the constitution, every decision of the district court may he reviewed upon appeal, but that provision was not intended to give a separate appeal from every decision. Under the provisions of see. 4824, Bev. Stat., all orders and decisions made in an action may be reviewed upon an appeal from the judgment, except such decisions or orders as may be directly appealed from under the provisions of subd. 3, sec. 4807. This is a wise provision, for if an appeal could be taken from every order made by the court during the progress of the trial, delays in the trial might be almost interminable. If the appellant in the case at bar had stood on the decision of the court quashing the summons and permitted judgment of dismissal to be entered against him, he could have appealed directly from that judgment and had said order reviewed. The legislature by the provisions of subd. 3 of said sec. 4807 has provided that a direct appeal may be taken from the orders therein mentioned, and the legislature might by proper enactment permit direct appeals to be taken from other orders made in an action; but until that is done, the orders made prior to final judgment in a pending action not embodied in said subd. 3 must be reviewed on an appeal from the judgment and are not appealable orders.

For the foregoing reasons, the motion to dismiss the appeal must be sustained, and it is so ordered. Costs are awarded to the respondent.

Ailshie, C. J., and Stewart, J., concur.