Farley v. Makee Sugar Co.

OPINION OF THE COURT BY WILDER, J. This is a suit to foreclose a tax lien pursuant to section 126G, R. L., as amended by Act 89 of the Laws of 1905. The hearing was had on December 1, 1906, at the conclusion of which tho [268] •circuit judge found‘in favor of the plaintiff. On December 14-, 1906, the circuit judge filed what was called a “judgment” reciting the proceedings, finding a certain sum to be due by defendant to plaintiff, and adjudging and decreeing that the plaintiff recover that sum from defendant with costs. On December 18, 1906, the circuit judge filed as of December 1, 1906, a “supplemental decree,” which recited the prior findings in more detail, declared a lien on the property of the defendant against which the taxes were assessed, and decreed the sale of the property through a commissioner as in ordinary foreclosure proceedings. On December 19, 1906, the defendant, apparently without knowledge of the entry of a decree on the day before, appealed to this court from the judgment of December 14 above referred to. M. F. Prosser, Deputy Attorney General, for plaintiff. B. W. Breclcom for defendant. The judgment of December 14 may be treated as an order making certain findings prior to the entry of a final decree or as a part of the final (although erroneously headed supplemental) decree filed December 18 as of December 1, in either of which cases the appeal will have to be dismissed, in the first case because without consent of the circuit judge one cannot appeal from a decree which is not final (see R. L., Sec. 1859 and note), and in the second case because one cannot select a part of a decree and appeal from that part alone. The fact that defendant had no knowledge at the time of filing his appeal that the final decree had been entered is immaterial. Appeal dismissed.