Henderson v. Wyatt

The opinion of the Court was delivered by Willard, A. J. The order appealed from was made by the Circuit Court, and its whole object was to allow an appeal from a decree made by the Probate Court, said appeal having been-denied by the Probate Court upon the ground that it had not been taken in time. The order is not appealable as it does not involve the merits of the case. The Code, Section 11, as amended November 25, 1873, (15 Stat., 495,) authorizes appeals to the Supreme Court from any “ intermediate judgment, order or decree involving the merits in actions commenced in the Court of Common Pleas and General Sessions, brought there by original process, or removed there from any inferior Cpurt or jurisdiction, and final judgments in such actions.” The word “actions,” as here used, clearly embraces all proceedings of an ordinary character in the several Courts from which an appeal may be taken to the Circuit Court, (Code, Section 2,) and would embrace an order made by the Circuit Court involving the merits on an appeal from the Probate Court from a decree of that Court, such as that referred to in this case. An order to involve the merits must finally determine some substantial matter forming the whole or a part of some cause of action or defense iu the case in which the order is entitled. In the present case the only matter determined was whether the appeal from the Probate Court was taken in time. Such an order cannot be said to involve the merits, but merely affects forms of procedure. The objection to the appeal just stated is not raised by the respondent. Ordinarily in-that case the Court will not interpose an objection to a proceeding not made by the parties in interest, [113] but this rule is subject to exceptions. When a question of jurisdiction is involved the Court may notice a defect of its jurisdiction such as ought to preclude a judgment on the rights involved, although not interposed by the party.—State, ex rel. Barker, vs. Bowen, S. C. MS. Dec. And where great practical inconvenience is likely to arise from disregarding such objections the Court may with propriety notice it: as where an opposite course would tend to establish an irregular and inconvenient practice. We regard the present case as one of the character, just named. Appeals from orders of this class would ordinarily create unnecessary expense and delay, to which parties ought not to be subjected, and are especially objectionable where the matter in dispute can be fully considered by this Court under an appeal from a final judgment of the Circuit Court upon the case. The appeal should be dismissed. Wright, A. J., concurred.