Easton v. Broadwell

Opinion of the court by McAtee, J.: If the plaintiff in error is entitled to be-heard here, it is because of the provision in section 4436, Statues- of 1893, that this court “may reverse, vacate or-modify any of the following orders of the district court, or a judge thereof: First, a. final order. Second, an order that grants or refuses a continuance; discharges,, vacates or modifies a provisional remedy; or grants, refuses, vacates or modifies an injunction; that grants or- *445 refuses a new trial; or that confirm®, oir refuses to confirm, the report of a referee; or that sustain® or overrules ■a demurrer. Third, an order that involves the merits of an action, or some part thereof.” The order complained of is not a final order, nor one concerning a continuance; nor does it discharge or otherwise affect any provisional remedy or injunction; nor are the merits of the action, or any part thereof, in any way involved. The order made by the court in this case was a mere interlocutory order, and left -the rights of the parties upon the merits of the action entirely unadjudicated. It should not have been brought here until the case was finally determined upon the merits. (McCallum v. Lambie, 145 Mass. 236, 13 N. E. 899.) There is no appeal from an order like that which was made in the court below, unless specifically provided by the statute. (Brown v. Rice, 30 Neb. 236, 46 N. W. 489; Duff v. Duff, 71 Cal. 513, 12 Pac. 570; Fleitas v. Richardson, 147 U. S. 538, 13 Sup. Ct. 429.) The appeal will therefore be dismissed All of the Justices concurring.