Ewing v. Kinnard

• Decision Date: 31 December 1847
• Citation: Ewing v. Kinnard, 2 Tex. 163 (Tex. 1847)
• Parties: JOHN F. EWING v. W. E. KINNARD
• Court: Texas Supreme Court

2 Tex. 163

JOHN F. EWING

v.W. E. KINNARD

Supreme Court of Texas.

December Term, 1847.

Appeal from Washington County.

No appeal lies from an interlocutory decree or judgment. [ Ante, 160.]

A decree, dissolving an injunction, and leaving the bill to stand over as an original bill, is interlocutory, and can only be revised by writ of error.

The facts of this case are substantially stated in the opinion of the court.

Fischer and Webb, for appellant.

Allen and McFarland, for appellee.

Mr. Justice LIPSCOMB delivered the opinion of the court.

The appellant filed a petition setting forth that certain property levied on by the sheriff of Washington county by virtue of an execution in favor of the appellee against Nathaniel Norwood was not the property of the defendant in the execution, but belonged to Mrs. Norwood, the wife of the said Nathaniel Norwood, held for her use by one Lockhart, who, since his acceptance of the trust, had died. The bill makes an exhibit of the title, prays that an injunction may issue, enjoining the said appellee from selling the property levied on. An injunction was granted, which was dissolved at the next succeeding term of the court on motion of the appellee's counsel, and the court ordered the bill to stand as an original bill. From the decree of the court dissolving the injunction, the appellant appealed to this court.

This being an appeal from an interlocutory decree, a preliminary inquiry is presented as to the jurisdiction of this court to revise the decree. The jurisdiction of this court is given by the constitution of the state, but the manner in which it is to be exercised in some cases is expressly left to be regulated by the legislature. The constitution provides that the supreme court shall have appellate jurisdiction only, which shall be coextensive with the limits of the state; but, in criminal cases and in appeals from interlocutory judgments, “with such exceptions and under such regulations as the legislature may make.” The supreme court having appellate jurisdiction only could not have taken cognizance of an interlocutory judgment but for the concluding part of the quotation from the constitution, because on principle, so long as a cause is retained in the court below before its final action, it is presumed to be within its control; and nothing definitive has been done to appeal from. This grant of power to take jurisdiction of criminal cases and appeals from interlocutory judgments is not given unconditionally, but it has to be executed under the action of the legislature, and if there had been no such action, it seems clear that it could not be exercised. In the constitution of the United States, the appellate jurisdiction of the supreme court is granted in some cases in language of the same import as is found in our constitution; in the former, after defining what original jurisdiction should be exercised, it proceeds to declare that in all other cases it should be appellate only, “with such exceptions...