Womack v. Connor

Wood, J., (after stating the facts.) Section 1188, of Kirby’s Digest, is as follows: “The Supreme Court shall have appellate jurisdiction over the final orders, judgments, and determinations of all inferior courts of the State in the following cases-and no others: First. In a judgment in an action commenced in the inferior courts, and upon the appeal from such judgment to review any intermediate order involving the merits and necessarily affect- • ing the judgmént. Second. In an order affecting a substantial right, made in such action, when such order, in effect, determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action; and when such order grants or refuses'a new trial, or when such order strikes out an answer, or any part of an answer, or any pleading in any action.” No judgment has been rendered in the cause in the lower court; hence no right of appeal lies under the first subdivision. Does the right of appeal lie under the second subdivision? The order of transfer to the circuit court affects a substantial right in the action, but it is not such an order as determines in effect the action, and prevents a judgment from which an appeal might be taken. The order does not discontinue the action; it discontinues it in the chancery court, but the action under the order contimies in the circuit court until it is disposed of there. The order does not abate the action; it merely transfers it to another forum. The right of appeal is regulated by the statute, and the statute must bé’followed. We are, therefore, of the opinion that the appeal herein is premature. If the order of the court is erroneous, it can be corrected on appeal from the final judgment when taken. See 1 Crawford’s Digest, AppBad and ERROR, I, d. The appeal is therefore dismissed.