Elliott v. Pollitzer
| Citation | 24 S.C. 81 |
| Parties | ELLIOTT v. POLLITZER. |
| Decision Date | 26 February 1886 |
| Court | South Carolina Supreme Court |
1. Where an administrator sues as such on a promissory note properly described and alleged to have been endorsed to him in his representative capacity, of which note he claims to be the legal owner and holder as administrator, the complaint states a cause of action.
2. An order refusing an oral demurrer is appealable, even before final judgment.
3. A notice of appeal, orally given, from an order refusing an oral demurrer, stays the further hearing of the cause on Circuit.
Before HUDSON, J., Beaufort, September, 1885.
The opinion states the case.
Messrs. Verdier & Talbird , for appellant.
Mr. J. B. Howe , contra.
On June 30, 1877, the defendant gave his promissory note to D McPherson for $1,000. Afterwards " the said note was endorsed and delivered by the said McPherson to the plaintiff herein, as administrator of R. C. McIntire, deceased; and he, the said administrator, is now the legal owner and holder thereof." The plaintiff, as administrator, sued upon the note, and upon the call of the case the defendant moved to dismiss the complaint upon the ground that " it did not state facts sufficient to constitute a cause of action." The presiding judge overruled the motion or verbal demurrer; and to this order defendant excepted, and gave verbal notice of appeal to this court, upon the ground that the judge erred in refusing the motion. The defendant also claimed that all further proceedings in the case should be stayed until his appeal from the order refusing the motion could be heard and decided here. Against the objection of the defendant, the judge submitted the case to the jury. The defendant offered no evidence, and the plaintiff had a verdict.
The defendant appealed to this court on two grounds:
I think that the Circuit Judge was right in refusing the motion to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. I see no good objection to the complaint, and none was stated. Indeed, the question seemed to be abandoned, and was not argued at the bar.
But it was earnestly urged that the verbal notice of appeal from the order refusing the motion to dismiss the complaint should have stayed all further proceedings in the court below until that appeal was decided in this court. This involves a very important point of practice. In respect to its appealable character, the order refusing the motion to dismiss the complaint, because it did not state facts sufficient to constitute a cause of action, cannot fall under subdivision 3 of section 11 of the Code, for the reason that it was not made in a special proceeding; nor can it fall under subdivision 2 of that section, because it did not " in effect determine the action or prevent a judgment from which an appeal might be taken." But it does fall within subdivision 1 of that section, which provides as follows: " The Supreme Court shall have exclusive jurisdiction to review any intermediate judgment, order, or decree involving the merits *** and final judgment: Provided, if no appeal be taken until final judgment is entered, the court may, upon appeal from such final judgment, review any intermediate order or decree necessarily affecting the judgment not before appealed from," & c.
It is clear that this section provides for the review of all " " intermediate orders," but the point is when and how the matter should be brought up for that purpose-after final judgment in the case or at the time made; and if the latter, whether such appeal must necessarily stay further proceedings in the case until the appeal is disposed of? In regard to reviewing an " " intermediate order" on appeal from the final judgment, the terms of the provision are not mandatory, but permissive; and from this it would seem to be inferrible that a party may, if he chose, appeal from an intermediate ruling at the time it is made. From the manner in which it is expressed, we do not feel authorized to hold that this may not be done. But I fully agree with Mr. Wait when he says: " It is not the policy of the code, with reference to appeals, to allow a review of intermediate orders, unless they are such as in effect terminate the action and prevent a judgment from which an appeal will lie, or unless upon appeal from final judgment." Wait Anno. Code , 669, and authorities.
If the motion to dismiss the complaint had been granted, the order would have had the effect of terminating the case and of preventing a judgment from which an appeal would lie, and under the terms of the law cited, would have been appealable at once. But it seems to us that it was very different when the motion was refused, for then the case was not terminated, but might go on to judgment, an appeal from which would bring under review the intermediate order as well, as appears in the very case before us, in which there is an appeal both from the final judgment and the intermediate order. There should certainly not be two separate appeals in the same case, but the intermediate order might be, and in my judgment should be, reviewed, if at all, under the appeal from the final judgment. This is, as it seems to me, the view of the code, for otherwise there would necessarily be great delays in the administration of justice, and this court would often be called upon to decide cases by piece-meal, and, indeed, to decide questions which, as tested by the final result, were entirely unnecessary.
But in case the party does not choose to await the final judgment before prosecuting his appeal from an intermediate order refusing to dismiss the complaint, what effect should such appeal have upon the further proceedings in the cause? Must they stop at that point until the appeal is disposed of? Does the notice of appeal propriore vigore stay all further proceedings, or may they...
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