Barkley v. Logan

• Decision Date: 31 August 1875
• Citation: 2 Mont. 296
• Parties: BARKLEY, respondent, v. LOGAN, appellant.
• Court: Montana Supreme Court

2 Mont. 296

BARKLEY, respondent,

v.LOGAN, appellant.

Supreme Court of the Territory of Montana.

August Term, 1875.

Appeal from First District, Jefferson County.

CHUMASERO & CHADWICK and SHOBER & LOWRY, for appellant.

JOHNSTON & TOOLE, for respondent.

Appellant cannot appeal from part of a decree. This court must have the whole case before it to make a proper modification. The present appeal will not authorize a review of any errors assigned.

WADE, C. J.

This is an action for a perpetual injunction to restrain appellants from the use of certain waters of Indian creek, Jefferson county. It appears that respondent and appellants are the owners of ditches that convey the waters of said creek to the mines in the vicinity. The findings of facts by the court show the ownership of the ditches, the dates of their construction, their carrying capacity, in miners' measurement, and their priorities. The decree is based upon such findings.

The appellants, being satisfied with the greater portion of the decree, gave notice of an appeal from that part which awarded priority to the ditch known as the Cedar Gulch ditch over that known as the South Bowman ditch.

The first question for determination is this: Can an appeal be taken to this court from a part of a final judgment? Can a judgment be severed into distinct parts and an appeal be taken from each, at different times, without bringing the whole judgment before the appellate court? The appellants have appealed from a part of the judgment now, but this does not preclude the possibility of an appeal by them at another time from some other portion of the decree.

The appellate jurisdiction of this court is defined by law, and the statutes confer jurisdiction in a particular manner in certain cases. In no other way than by following the law can this jurisdiction be acquired.

Sections 369 and 380 of the Practice Act define the appellate jurisdiction of this court, and, in substance, declare that an appeal may be taken from a final judgment; from an order granting or refusing a new trial; from an order granting or dissolving an injunction, or attachment; from any special order made after final judgment, and from interlocutory judgments in actions of partition. In these and in no other cases has this court appellate jurisdiction.

How is this jurisdiction acquired? Section 370 of the Practice Act provides, that an appeal shall be made, by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice, stating the appeal from the same, or some specified part thereof, and serving a copy of the notice upon the adverse party, or his attorney. The notice defines what is appealed from, and controls the jurisdiction of the appellate court. If the appeal was from a final order made after judgment, it would not bring the judgment before the court; if it was from a part of a decree, it would not give jurisdiction to this court over the whole decree.

We do not think the statutes contemplate an appeal from a part of a judgment. Sections 369 and 380 define the appellate jurisdiction; and section 370, providing now an appeal shall be taken, does not enlarge this jurisdiction. The sections conferring jurisdiction must control, instead of what is incidentally said in the section providing how the appeal shall be taken.

When an appeal is taken from a judgment, it must be from the whole of it. The statute does not authorize the taking of a judgment into an appellate court for review by piecemeal. The appeal must bring the whole judgment before the appellate court. This court cannot reverse or affirm the fragment of a judgment. Jurisdiction for this purpose has not been...