88 P. 54 | Kan. | 1906
The opinion of the court was delivered by
George W. White brought an action against the Atchison, Topeka & Santa Fe Railway Company for damages occasioned by the obstruction of the channel of the Neosho river by one of that company’s bridges, and to enjoin the maintenance of the bridge in its present form. A demurrer to the plaintiff’s evidence was sustained May 19, 1905. A motion for a new trial was at once filed, which was denied August 30, 1905, when a judgment was rendered against the plaintiff for costs, and time was given to make a case. Within the time fixed a case-made was settled, and a petition in error was filed in this court January 22, 1906.
A preliminary question arises upon a motion to dismiss. The defendant in error contends that the order sustaining the demurrer to the evidence was one capable of being independently reviewed by a proceeding in error that could be begun at once — in other words, that it was an “appealable order”; that no motion for a new trial was necessary or proper, and that the filing of one did not have the effect to extend the time for serving a case; that with the expiration of ten days from the time the ruling was made jurisdiction to make a case that should preserve such ruling for review was lost and could in no way be restored; and therefore that the case-made here- presented is a nullity.
The enumeration of appealable orders in the statute (Code, §542; Gen. Stat. 1901, §5019) includes: the sustaining or overruling of a demurrer, without limit- . ing the application of the word to demurrers to pleadings; a final* order, which is so defined (Code, § 543;
The question for present determination therefore narrows down to this: Where a demurrer to evidence is sustained must, the party against whom such ruling is made, in order to procure a review of it by means of a case-made, within ten days from that time either serve a case or procure an extension of time for doing so, or may he wait until a final judgment is rendered against him and then by means of a case served within ten days from that date institute proceedings in error for the reversal of the judgment and therein have this court pass upon the question whether the sustaining of the demurrer was erroneous? It is a familiar rule of appellate practice that “interlocutory orders are ■reviewable, in the absence of a permissive statute, only on appeal from the final judgment that is rendered in the cause-.” (2 Cyc.- 586.) This implies that errors assigned with regard to such rulings may be examined on review of the final judgment, unless forbidden by statute.
“While, as a general rule, interlocutory orders and judgments cannot be directly appealed from, yet it is ‘ equally well settled that an appeal from a final judgment or decree brings up for review every interlocutory decision which has been properly excepted to and which*781 substantially affects the merits of the case.” (2 Encyc. PI. & Pr. 90.)
Does our code, in authorizing the independent review of certain interlocutory decisions, limit the party aggrieved to that method, or may he wait until final judgment and in attacking that have all prior rulings examined? Section 542 reads, in part:
“The supreme court may reverse, vacate and' modify a judgment of a district court or other court of record, except a probate court for errors appearing on the record; and in the reversal of such judgment or order may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof.” (Gen. Stat. 1901, § 5019.) .
Of a similar provision it was said in Brown v. Willoughby, 5 Colo. 1:
“An ‘intermediate order,’ within the meaning of this section, is an order from which no appeal can be taken under the code, and which, therefore, but for this provision, could not be reviewed. It applies exclusively to non-appealable orders.” (Page 8.)
And in McCourtney v. Fortune, 42 Cal. 387:
“Upon an appeal from a final judgment an order made in the cause which is itself, by statute, made the subject of a distinct appeal, cannot be reviewed.” (Page 390.)
The same view is taken in Maynard v. Johnson, 2 Nev. 16. These cases, however, were decided without full discussion, and may have been influenced to some extent by other provisions of the statute not precisely like those of our code. On the other hand, in the following cases, in construing substantially similar statutes, it was held that the party against whom an appealable order is made during the progress of litigation has the option to institute proceedings in error at once, or to wait until final judgment, and, in an attack upon that, question the correctness of the preliminary ruling: Jones v. The Chicago and Northwestern R. R. Co., 36 Iowa, 68, 72; Lafferty v. Shinn, 38
“An appeal taken in time from a decree will bring up for review every former order or decree not itself appealable, no matter when entered, and every appeal-able order or decree entered not more than two years*783 before the appeal; but it will not bring up for review any appealable order or decree entered more than two years before the appeal.” (Page 343.)
This conclusion accords with the expressions used in Blackwood v. Shaffer, supra, and in U. P. Rly. Co. v. Estes, 37 Kan. 229, 15 Pac. 157, and Goodrich v. Comm’rs of Atchison Co., 47 Kan. 355, 27 Pac. 1006, 18 L. R. A. 113, bearing more or less directly on the matter. It is worthy of remark that the words “any intermediate order involving the merits of the action, or any portion thereof,” occurring in that portion of section 542 already quoted, cannot be treated as the equivalent of substantially the same phrase (“an order that involves the merits of an action or some part thereof”) when used later in the section to describe a class of appealable orders, for it could not have been the purpose of the legislature to confine the court upon an appeal from a final judgment to the consideration of one of the three classes of appealable orders and to cut off a’review of non-appealable orders entirely. We must regard them as intended to be understood in a broad sense, covering all decisions materially affecting the final determination of the cause, whether in themselves appealable or otherwise, and we conclude that a case-made, served within ten days after the final judgment, preserves for review all rulings of that character.
In what has been said we have assumed that the judgment rendered in this action was a final judgment. A doubt of the correctness of this assumption arises from the fact that in form it is a mere judgment in favor of the defendant and against the plaintiff for the costs of the action. Decisions and text statements are abundant which assert that such a judgment is not final and will not support an appeal or evidence an adjudication; that to be final a judgment against a plaintiff must formally declare that he shall take nothing by his action or that the defendant go thereof without day, or employ some equivalent expression.
Upon the merits little need be said, although the question presented is not easy of determination. It is' not necessary to review the testimony in detail. The action was an outgrowth of the extraordinary floods of 1902, 1903 and 1904. If the cause had been submitted for a final decision upon the evidence introduced, a finding against the plaintiff upon the ground that the
The judgment is reversed and the cause remanded for further proceedings.
