Johnston v. Reiley

Cole, J. We are inclined to hold the order staying proceedings until the accounting could be had in the other action, not appealable. It related only to the time of the trial of the action, and was much like an order granting a continuance of the cause. It is very manifest that there are many orders staying proceedings [496] which are matters of discretion on the part of the court, and from which no appeal lies. We think this is one of them. It appears to us that the only clause of the appeal statute under which it could with any reason be claimed that this order is appealable, is the 4th subdivision of section 10, chapter 264, Laws of 1860. Under that clause, an order is appealable when it involves the “merits of an action, or some part thereof.” How can this order staying proceedings be said to involve the “merits of the action?” The court really refuses to look into the law or facts of the case at the present time, and makes no disposition of the issues therein, but merely stays proceedings until an accounting can be had in another action. It is a matter of practice as to whether the cause should at once be tried, or postponed for a time, and seems to us quite analogous to an order granting a continuance. Such. questions of practice every court should have the right to regulate and control for itself, in that manner which will most effectually secure the rights of parties and promote the cause of justice. By the Court. — The appeal is dismissed.