Eastman v. Gurrey

• Decision Date: 29 October 1896
• Docket Number: 734
• Citation: 14 Utah 169,46 P. 828
• Court: Utah Supreme Court
• Parties: M. EASTMAN, APPELLANT, v. A. R. GURREY, RESPONDENT

46 P. 828

14 Utah 169

M. EASTMAN, APPELLANT, v. A. R. GURREY, RESPONDENT

No. 734

Supreme Court of Utah

October 29, 1896

Appeal from the district court, Third judicial district. Hon. John A. Street, Judge.

Ejectment by M. Eastman against A. R. Gurrey. From an order vacating a judgment for plaintiff, plaintiff appeals. Respondent moves to dismiss the appeal on the ground that the order setting aside the judgment was not final.

Appeal dismissed.

C. S Varian and Ricy H. Jones, for appellant.

T Ellis Browne and Bennett, Harkness, Howat & Bradley, for respondent.

MINER J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

It appears from the record in this case that the plaintiff recovered judgment in the district court in an action in ejectment against the defendant in February, 1896. This judgment was afterwards set aside and vacated, and a new trial granted, on motion of the defendant. The appellant appeals from the order vacating and setting aside the judgment. The respondent now moves to dismiss the appeal on the ground that no appeal lies to this court from an order vacating and setting aside the judgment, under section 9 of article 8 of the state constitution, and that such order was not a final judgment from which an appeal will lie to this court. The same principle is involved in this appeal as in that of North Point Consol. Irr Co. v. Utah & S. L. Canal Co., 14 Utah 155, 46 P. 824. That case involved the constitutional right of appeal from an order granting an injunction pendente lite. The decision in that case, on principle, is decisive of this. We shall therefore content ourselves with a reference to the reasoning in that case as applicable in this. This case, as that, involves the construction of sections 4 and 9 of article 8 of the constitution. Section 9 provides that, "From all final judgments of the district courts, there shall be a right of appeal to the supreme court." Upon that subject this court said: "There is no express declaration that appeals will not lie from judgments other than final judgments, but the court considers the affirmative declaration used in the section as manifesting the intent of the framers of the constitution to except from the appellate jurisdiction of the supreme court all appeals other than appeals from a final judgment. This restriction and implication is founded on the manifest intent of the framers of the constitution, and upon the general rules of construction that the expression of one thing in the constitution implies the necessary exclusion of things not expressed. We are of the opinion that when the framers of section 9 used the terms, 'From all final judgments of the district courts, there shall be a right of appeal to the supreme court,' they intended to deny the right of appeal to the supreme court in all other cases arising under that clause, although no express term of negation was used." Durousseau v. U.S., 10 U.S. 307, 6 Cranch 307, 3 L.Ed. 232; Ex parte Attorney General, 1 Cal. 85; Ex parte McCardle, 74 U.S. 506, 7 Wall. 506, 19 L.Ed. 264; U.S. v. Arredondo, 6 Pet. 723, 725; Suth. St. Const. §§ 325-327; Fowler v. Scully, 72 Pa. 456; Cooley, Const. Lim. pp. 78-105; Story, Const. §§ 413, 453; State v. Hallock, 14 Nev. 202; Ex parte Vallandigham, 68 U.S. 243, 1 Wall. 243, 17 L.Ed. 589; Railroad Co. v. Grant, 98 U.S. 398, 25 L.Ed. 231. We are of the opinion that an appeal from an order vacating and setting aside a judgment is not an appeal from a final judgment and that such an order is not a final judgment from which an appeal will lie to this court under section 9 of article 8 of the constitution. Artman v. Manufacturing Co., (Neb.) 20 N.W. 873; Baker v. White, 92 U.S. 176, 23 L.Ed. 480; Telegraph Co. v. Locke, (Ind. Sup.) 107 Ind. 9, 7 N.E. 579; Hume v. Bowie, 148 U.S. 245, 37 L.Ed. 438, 13 S.Ct. 582; Freem. Judgm. § 34; Bank v. Jenkins, 109 Ill. 219; Bostwick v. Brinkerhoff, 106 U.S. 3, 27 L.Ed. 73, 1 S.Ct. 15; Hill v. Railroad Co., 140 U.S. 52, 35 L.Ed. 331, 11 S.Ct. 690; 2 Enc. Pl. & Prac. p. 53; Tinly v. Martin, 80 Ky. 463; Holcombe v. McKusick, 61 U.S. 552, 20 HOW 552, 15 L.Ed. 1020; Brown v. Edgerton, (Neb.) 14 Neb. 453, 16 N.W. 474; Walker v. Oliver, 63 Ill. 199; Truett v. Rains, 17 S.C. 451; Dows v. Congdon, 28 N.Y. 122; Ray v. Northrup, 55 Wis. 396, 13 N.W. 239; Bolles v. Stockman, 42 Ohio St. 445.

The reason of the rule is obvious. A party against whom an order is made vacating and setting aside a judgment may have all his wrongs redressed, and his rights protected, upon a new trial. If the party whose judgment is vacated succeeds upon a new trial, he has suffered no injury. If he has a fair trial he should not complain, as he has all the law contemplates. If these rights are not protected upon a final hearing, the errors can usually be corrected upon appeal from the final judgment. "The policy of the laws of the several states and of the United States is to prevent unnecessary appeals. The appellate courts will not review cases by piecemeal. The interests of litigants require that causes should not prematurely be brought to the higher courts. The errors complained of might be corrected in the court...