delivered the opinion of the court.
On mоtion for a rehearing the' original opinion herein is withdrawn and this one rendered and filed in substitution.
This is an action in equity, instituted by the plaintiff on November 7,’ 1925, to obtain a decree permitting him to offset a judgment which is entered against him in the sum of $323,722.90, together with accrued interest and costs
(Biering
v.
Ringling,
*393
During the pendency of the action this court rendered a decision on an appeal in an action for damages for alleged breach of contract, instituted by Biering and Cunningham against Singling (
Was the judgment entered such as may be reviewed upon appeal?
Upon re-argument of this case, and after again carefully reviewing the authorities, we now feel that the construction given the statute in the original opinion is not justified. The question is most important as one of practice in the instant case, but more so as a precedent. We are without authority to legislate, and are powerless to confer a right of appeal independent of special legislative authorization. Accordingly, we are constrained to recede from our former conclusions reached on this appeal.
Our Constitution authorizes appeals to this court from district courts “under such regulations and limitations as may be prescribed by law” (seсs. 2, 3 and 15 of Article VIII), and by law, an appeal “from a final judgment entered in an action” is expressly authorized. (Sec. 9731, Rev. Codes 1921.) However, a judgment in a civil action may be reviewed on appeal as by the statute' permitted, “and not otherwise” (Id. 9729), and “upon an appeal from a judgmеnt the court may review the verdict or decision,
and any intermediate order or decision excepted to, which involves the merits,
except a decision or order from which an appeal might have been taken.” (Id. 9750.) The right of appeal is purely statutory; it did not exist at common law, and unless the judgment appealed from falls fairly within the classification made by
*395
the law the appeal will not lie.
(Holter Lumber Co.
v.
F. F. Insurance Co.,
Our system of procedure contemplates but one final judgment in an action, and in the absencе of a clear showing that
an intermediate order was intended as finally disposing of the action or a particular part thereof, it will not be presumed that the court would attempt to dispose of a case piecemeal by successive final judgments, each covering a part of the matters in controversy.
(Doudell
v.
Shoo,
Intermediate judgments in an action requiring the payment of аlimony pendente lite, or the payment from funds impounded in receivership in the action, by one party to another of receivership costs, or dismissing a party to the action, are quite different from orders made relating to the sufficiency of the pleadings in the action. Clearly those in the first categоry constitute final judgments as to matters in the action thereby determined, whereas the latter, affecting merely the pleadings, are necessarily interlocutory, — made in progress of a determination of the issues to be finally considered in rendering a final judgment in the action. Under like statutes, the authorities seem to be in accord, that for the purpose of an appeal a judgment in an action will be considered as final only when it terminates the litigation between the parties, leaving nothing to be done other than its enforcement; the exceptions being in cases (1) where an adjudication is made requiring the payment of money by one party to another in the action, or as a charge against one of the parties; (2) or from funds impounded in the action; or (3) definitely determining the rights of a litigant in the action as against other separate parties thereto. In the first instance mentioned the determination is final as to that *397 which is decreed and it is enforceable by execution or contempt proceedings; in the second instance the corpus is affected; and in the last, the judgment finally disposes of a right asserted by one litigant against others, leaving the main action to proceed.
Whether a judgment is final or not is sometimes difficult of determination. “In drawing the distinction between final and interlocutory adjudications, the greatest difficulty has been experienced in the case of decrees in equity; the confusion arising principally from the peculiar nature of the decisions, and the wide range of means which chancery possesses both for informing the mind of the judge and for acting upon the parties concerned.” (Black on Judgments, 2d ed., see. 41;
Arnold
v.
Sinclair,
Accordingly, a judgment denying to a defendant the relief by him demanded in a cross-complaint is not a final judgment.
(Stockton etc. Works
v.
Hartford Fire Ins. Co.,
In Freeman on Judgments it is said: “Sometimes several issues of law and of facts are presented for the consideration of the court in the same suit or proceeding. In such case there can be no judgment from which an appeal can be taken while it remains necessary for the court to determine some issues of law or fact.” (Sec. 26, p. 43, 4th ed.) And that learned author further states that “there cannot be a final judgment upon a defendant’s cross-comрlaint, and later in the same action a final judgment disposing of other issues.” (Sec. 26, p. 45.)
A counterclaim is merely a pleading on behalf of the defendants in an action and differs little, as between the plaintiff and the defendant named in the action, from a cross-complaint. And before the enactment of our statute (sec. 9151 Rev. Codes 1921), authorizing the filing of cross-complaints (in the year 1919), no one would have seriously argued that an order striking out a counterclaim constituted a final judgment. No one would ever be heard to seriously urge that the portion of the order striking out the affirmative defenses pleaded by the defendants in their answer constituted a final judgment in the action; and in our opinion, the defendants’ cross-complaint, made a part of the answer, is not properly placed in any different category. The order in this case was made merely in settlement of the pleadings, and was intermediate rather than final.
*399
In the most recent decision of this court dealing with the subject (July 12, 1928), it was held on an appeal from an order of the district court refusing to grant an injunction
pendente lite
(an appealable order) that as to matters of pleading and practice “they can be reviewed upon appeal from a final judgment in the case, when one shall have been rendered and entered, but they have no place in this appeal. So it is with numerous rulings of the trial court * * * such as striking out much of her separate amended answer and cross-cоmplaint, * * « and other rulings upon matters of pleading and practice or upon questions of law raised. They may be reviewed upon appeal from final judgment. (Sec. 9750, Rev. Codes 1921.) That will be the time and place of settling them; not here.”
(National Bank of Montana
v.
Bingham,
This appeal is clearly distinguishable from the recеnt California case of Howe v. Key System Transit Co., supra. In that case a defendant in the action attempted by cross-complaint to place responsibility upon and recover damages from another co-defendant. The plaintiff moved to strike the cross-complaint from the 'files, which motion was sustained. Such action was properly held to constitute a final judgment as between such defendant and his co-defendant. That this is correct is apparent; the judgment was final as between the defendant and his co-defendant, holding as it did that the defendant could not recover damages in the action against his co-defendant. It was final as between the defendant against whom the cross-complaint was directed and the defendant who filed it. It constituted a final judgment in the action though not the last judgment to be entered. Such a judgment is within the class of exceptions above noted.
Uрon further earnest study and consideration of the law, we have come to the conclusion that an appeal does not lie in this ease in its present status, that the judgment entered dismissing the defendants’ cross-complaint is interlocutory *400 rather than final. No such final judgment was entered in the action as warrants an appeal from the judgment under the terms of the statute. This action is single as to the plaintiff’s alleged rights, and until they are determined there is no finality in it, no matter how many intermediate orders or judgments may be entered. We do not overlook the fact that appeals arе expressly authorized to be taken from certain intermediate decisions and orders (sec. 9731, Rev. Codes 1921), but the judgment complained of is not of the kind enumerated in the statute.
Here it is plain that the plaintiff has not as yet secured, or been denied, the relief sought by him in the action; the proсeedings are still pending on the plaintiff’s complaint, undisposed of, in the district court.
For -the reasons stated, the motion to dismiss the appeal is sustained.
Dismissed.