The Western Union Telegraph Company v. Locke

• Decision Date: 15 June 1886
• Docket Number: 12,941
• Citation: 7 N.E. 579,107 Ind. 9
• Parties: The Western Union Telegraph Company v. Locke, Administrator
• Court: Indiana Supreme Court

7 N.E. 579

107 Ind. 9

The Western Union Telegraph Company v. Locke, Administrator

No. 12,941

Supreme Court of Indiana

June 15, 1886

From the Huntington Circuit Court.

Appeal dismissed.

C. B Stuart and W. V. Stuart, for appellant.

H. J Shirk, J. Mitchell, J. L. Farrar and J. Farrar, for appellee.

OPINION

Elliott, J.

The appellant prosecutes this appeal from an order directing it to produce a written instrument, and the appellee denies that an appeal will lie. The question, therefore, is, will an appeal lie from an order requiring a party to produce a document?

It is declared by the very great weight of authority, that an appeal will lie only from final judgments, unless the statute otherwise expressly provides. Mr. Powell says: "The rule that an appeal only lies upon a final decree, judgment or order, seems to prevail throughout the States; and that it can not be taken upon an interlocutory order unless expressly allowed by statute. A judicial decision is essential as the foundation of an appeal." Powell App. Proceed. 367. Freeman says: "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 cases should not be prematurely brought to the higher courts. The errors complained of might be corrected in the court in which they originated; or the party injured by them might notwithstanding the injury, have final judgment in his favor. If a judgment, interlocutory in its nature, were the subject of appeal, each of such judgments rendered in the case could be brought before the appellate court, and litigants harassed by useless delay and expense, and the courts burdened with unnecessary labor." Freeman Judg., section 33. Another author says: "To authorize an appeal, there must be a judgment," and adds: "In addition to this requisite, appeal, like a writ of error, is generally confined to a final judgment. It can not be taken, unless expressly authorized by statute, from a judgment merely interlocutory or provisional." Hilliard New Trials (2d ed.), 712.

We do not think it necessary to refer to the numerous cases cited by these authors, for there is no diversity of opinion, and our own cases have recognized as correct the rule stated by them. Miller v. State, 8 Ind. 325; Reese v. State, 8 Ind. 416; Reese v. Beck, 9 Ind. 238; Hamrick v. Danville, etc., G. R. Co., 30 Ind. 147; State v. Ely, 11 Ind. 313; Northcutt v. Buckles, 60 Ind. 577.

It is indeed settled that the general rule is, that parties can not by agreement take a case by appeal to the Supreme Court, unless there is a final judgment. Shroyer v. Lawrence, 9 Ind. 322; Wingo v. State, 99 Ind. 343. We affirm, therefore, that the general rule is that appeals will lie only from final judgments.

The order directing the production of the contract between the appellant and the railroad company is an order made in the progress of the cause and is not a final judgment. If it should be conceded that such an order is final, then it must be so held in every case where a written instrument is ordered to be produced, whether it be a promissory note, a receipt, a deed, a lease or any other written instrument, and such a holding would enable litigants to vex their adversaries in the simplest cases by groundless and expensive delays. The spirit of our cases and the principles of our law are against the practice here contended for by the appellant, and upon a careful search we have found no case recognizing such an order as that appealed from as a final judgment. It is not a final judgment within any definition that we have seen. A final judgment was thus described in one of our own cases: "A final judgment is the ultimate determination of the court upon the whole matter in controversy in the action. An order of the court, made in the progress of the cause, requiring something to be done or observed, but not determining the controversy, is an interlocutory order, and is sometimes called an interlocutory judgment." Pfeiffer v. Crane, 89 Ind. 485. Mr. Freeman says: "The general rule recognized by the courts of the United States, and by the courts of most, if not of all the states, is that no judgment or decree will be regarded as final within the meaning of the statutes in reference to appeals, unless all the issues of law and of fact necessary to be determined were determined, and the case completely disposed of, so far as the court had power to dispose of it." Freeman Judge., section 34. At another place this author says: "So far as any general distinguishing test can be gathered from the numerous decisions, it is this: That, if after a decree has been entered, no further questions can come before the court, except such as are necessary to be determined in carrying the decree into effect, the decree is final; otherwise it is interlocutory." Freeman Judg., section 36.

It is said by another author, citing many cases, that "The idea of an appeal is, that it is for the purpose of a rehearing of the whole case upon its merits." Powell Appellate Proceedings, 369. We are referred to several cases decided by the Supreme Court of New York, but we find on examination that they are founded on a statute of a peculiar character, and that there is a direct conflict in the decisions of that court, so that the decisions referred to can not be regarded as authority elsewhere than in New York, even if they can be so regarded in that jurisdiction. Wait Annotated Code, 685, 688.

The case of Cummer v. Kent Judge, 38 Mich. 351 was an application for a mandate to compel a judge to vacate an order of discovery, and in two essential respects it differs from the present: 1st. It was not an attack upon an interlocutory order made upon a party to produce instruments of evidence. 2d. The opinion proceeds upon the theory that the trial court had no jurisdiction to make the order, for it is said in the conclusion of the opinion that "The order was not a legitimate exercise of jurisdiction." Whatever may be thought of the correctness of the decision, it is evident that it is not of controlling authority in our State where there is a statute expressly authorizing the court to make an order to produce papers and documents. R. S. 1881, sections 479, 480. It is to be kept in mind that in this instance the court had jurisdiction of the subject-matter and of the person, and although it may have erred the error can only be corrected on an appeal properly taken, so that the question here is not one of jurisdiction. The decision in Taylor v. Sweet, 40 Mich. 736, is not in point, for there the judgment fully and finally settled the rights of...