Harris Mfg. Co. v. Walsh

• Decision Date: 01 January 1879
• Citation: 2 Dak. 41,3 N.W. 307
• Parties: Harris Manufacturing Co., Respondent, v. James M. Walsh, Appellant.
• Court: South Dakota Supreme Court

3 N.W. 307

2 Dak. 41

Harris Manufacturing Co., Respondent,

v.James M. Walsh, Appellant.

Supreme Court of the Territory of Dakota.

Filed _______, 1879.

MOODY, J.

This is an appeal from an order of the Clay county district court sustaining the plaintiff's demurrer to the first paragraph of defendant's answer.

The demurrer is as follows: “The plaintiff demurs to the first defence in the defendant's answer herein, on the ground that the same on its face does not state facts sufficient to constitute a defence.”

Upon trial of the issue of law thus formed the court made the following order: “This action having been heretofore brought to a trial on the issues of law joined, and after hearing argument of counsel in support thereof and in opposition, ordered that said demurrer be sustained, and that as to said first defence, in the defendant's amended answer herein, the plaintiff have judgment, but with leave to defendant to amend said first defence within five days after notice, on payment of costs. Unless defendant elects to stand upon his defence, let this order be entered by the clerk.”

Upon this order no judgment was entered, and no further action taken, except there appears the following indorsement, in no proper way authenticated by being incorporated into a bill of exceptions or judgment, to-wit: “The defendant elects to stand upon the demurrer.” Nor does there appear any undertaking to perfect the appeal.

The view we have taken of this appeal disposes of it without the necessity of passing upon the effect of these irregularities, but they are noticed only as indicating a very loose and unsatisfactory practice, too often indulged in by counsel in bringing transcript to this court.

The defendant's amended answer contains eight paragraphs, several of which are distinct and separate defences, and to only one of which (the first) as is seen the plaintiff demurred. Presumably the action is proceeding upon the other issues of facts thus made in the case.

The only question I care to discuss, and which is decisive of this appeal, is this: Will this court, in the exercise of the appellate powers and jurisdiction conferred upon it, hear and determine an appeal from an order sustaining a demurrer to a part of a pleading, without any judgment thereon, and before there has been any final determination of the litigation between the parties? In other words, will this court allow parties to bring their cases here by piecemeal, during the pendency of the action in the district court, and apparently for the purpose only of obtaining the opinion of this court upon a question of practice or law, and perhaps wholly unnecessary to a complete and just disposition of the cause? If, by any law binding upon this court, we are compelled to perform this needless labor, we shall yield obedience to such an enactment, however disastrous, in our opinion, it may be to the best interests of suitors, and causing, as it necessary will, great and useless delay and expense, and enabling litigous persons to use this court in a manner amounting frequently to a denial of justice.

These reflections will not be deemed ill-timed, when we consider that but two terms of this court a year are or can well be held; that the district courts are sitting at remote distances from the seat of government, often with crowded, increasing calendars, and that the same judges constituting this court are compelled to give all the time possible to their duties as district judges. But are we helpless to prevent this undoubted evil? This court is the creature of congress. By the acts of congress, and by the force of those acts only, has this court any existence. Its appellate powers and jursdiction are derived solely from those acts; the law of no other tribunal can confer them. Just so far as congress has conferred appellate powers and jurisdiction, either by direct enactment or through delegated authority, it possesses them and can exercise them, and it does not possess and cannot exercise other or greater powers. Now what are the appellate powers and jurisdiction conferred by congress upon this court? Section 1869 of the Revised Statutes of the United States provides: “Writs of error, bills of exception and appeals shall be allowed in all cases from the final decision of the district court to the supreme court of all the territories respectively, under such regulations as may be prescribed by law; but in no case removed to the supreme court shall trial by jury be allowed in that court.”

In that section is plainly expressed the power to hear and determine writs of error and appeals from final decisions of the district courts in all cases; not from interlocutory orders or decisions, not from orders made or decisions pronounced during the progress of the cause, but from final decisions, or, what is the equivalent term, when applied to an action, from final judgments.

No judgment is final which does not terminate the litigation between the parties to the suit. St....