Hayes v. Caldwell

The Opinion of the Court was delivered by Treat, C. J. Caldwell and Ryan brought a suit at Law against Hayes, Guard and Siddall, and also exhibited a bill in Chancery for the discovery of facts to aid in the prosecution of the action. Hayes filed a demurrer to the bill, which the Court overruled. He then sued out a writ of error, which the defendants in error now move to dismiss. An appeal or writ of error does not lie from an interlocutory judgment or decree, but there must be a final decision of the case before either party can have it reviewed in this Court; such a decision as settles the rights of the parties respecting the subject matter of the suit, and which concludes them until it is reversed or set aside. Pentecost v. Magahee, 4 Scam. 326. The present case is not within this principle. The order of the Court on the demurrer was not a final disposition of the case. The rights of the parties were not thereby ascertained and determined. The case is still pending for the further action of the Circuit Court. The defendants have still to plead to or answer the allegations of the bill, and the Court has yet to decide upon the sufficiency'of the pl.ea or answer. Not until these subsequent proceedings are had, and the suit is at an end, can the case if ever, be removed into this Court for revision. It was insisted on the argument, that the effect of dismissing the writ of error will be to compel the defendant, Hayes, to make discovery as to all of the allegations of the bill, although he may, by so doing, subject himself to prosecution for a criminal offence. No such result can follow. He can insist upon his rights in this respect, as well in his answer as by demurrer. He can answer the allegations that have no such tendency, and as to those, the response to which may tend to criminate him, he may claim his privilege and decline to answer; and the Court, if satisfied that he cannot safely make the discovery, will certainly protect him in refusing to do it. The writ of error is dismissed with costs. Writ dismissed.