Mabry v. Birge

Gould, Associate Justice. There is no assignment of errors in this case, and this of itself is a good ground for its dismissal. But we are also of the opinion that the order appealed from is not a final judgment, but is interlocutory in its character and will not support an appeal. In the course of litigation commenced by Mrs. Ward to enjoin Harrison and Jones from selling, under deeds of trust from her husband, property which she claimed to he her homestead, and also, in part her separate property, the court appointed a receiver to collect incoming rents. How, her husband, who was made a party defendant, dying during the suit, Mabry, his administrator, becomes a party defendant, and having collected some rents which, under the order of court the receiver was entitled to, the court, after motion and hearing, entered up an order directing him to pay over the amount collected to the receiver and restraining him from making [286] further collections ; and from this order Mabry prosecuted this appeal. The litigation between Mrs. Ward on the one hand and Harrison and Jones, and Mabry, administrator, on the other, was certainly not disposed of, and indeed the judgment in that case is appealed from by Mrs. Ward and also by Mabry, administrator, and that appeal has been submitted to us at the same time as the present case. Evidently this order may have been, and indeed we think has been, so modified and affected by the final judgment as to render it substantially inoperative. The rents are remitted to the hands of the administrator, and the result is that those rents already in his hands will remain there. Enough has been said to show that the order appealed from was interlocutory, and whilst the consideration of this appeal is beyond our jurisdiction no injustice will result from our ruling. For the reason stated this cause is dismissed. Dismissed. [Justices Moore and Reeves did not sit in this case.]