Mercer, &C., v. Glass' ex'R.

Decision Date15 October 1889
Citation89 Ky. 199
CourtKentucky Court of Appeals
PartiesMercer, &c., v. Glass' Ex'r.

The appellants, who were plaintiffs below, objected in proper form to the regular judge trying this cause because he was not only related to one of the defendants, but his attorney. A motion was, at the same time, entered by the appellants to hold an election for a special judge. It was overruled, and the court, over the objection of the appellants, ordered the action transferred to the circuit court of the county. Subsequently the appellants moved to set aside this order. This motion was also overruled, and they have appealed.

The appellate jurisdiction of this court is confined to final orders and judgments. (Civil Code, page 375.)

The question at the threshold is, does an appeal lie from the order of transfer? Is it of a final character? It has not been made so by statute, and we must turn to the general law for an answer.

It is often difficult to fix the boundary between orders which are, and are not, final. A final order has been defined to be one which "either terminates the action itself, decides some matter litigated by the parties, or operates to divest some right in such manner as to put it out of the power of the court making the order after the expiration of the term to place the parties in their original position." Briefly, it is one which disposes of the cause, or of a distinct and definite branch of it. To be such, it need not determine the merits of the cause or be a final determination of the rights of the parties as to the matter of dispute. (Freeman on Judgments, section 21.) It is sufficient if it be a final determination of that particular suit. Thus, as said in section 17 of the work just cited, the dismissal of an action by the plaintiff is a judgment. An interlocutory order, however, is one which does not dispose of the action. In this instance it was not ended by the order of transfer, but merely sent to a court invested with like jurisdiction of the same government. The order was not equivalent to one of dismissal.

There is some conflict of decision as to whether even an order transferring a case from a State to a federal court is a final one and authorizes an appeal. It was held in the cases of Jackson v. The Railroad, 58 Miss., 648, and Jones v. Davenport, 7 Coldwell, 145, that it was not; but otherwise in Rosenfeld v. Condict, 44 Texas, 464; Burson v. National Park Bank, 40 Ind., 173; State v. The Judge of the Thirteenth Judicial District, 23 La. An., 29, and by this court in Hall & Long v. Ricketts, 9 Bush, 366. In such a case, however, the party is taken into the court of a different government. The order of removal determines finally the question of the jurisdiction of the State court, and is equivalent to sustaining a plea to its jurisdiction.

The State's judicial power is then at an end. If the party opposing the order cannot appeal at this stage of the case to this court, he can never do so. Without now deciding, however, whether a party can appeal from such an order, because the question is not now before us, we pass it by with the suggestion that reasons exist in such a case in favor of the right which are not found in the one now presented.

Blackstone says that "final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for," and that "interlocutory judgments are such as are given in the middle of a cause, upon some plea, proceeding or default, which is only intermediate,...

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