Wickman v. Nalty

On Motion to'Dismiss. The opinion of the Court was delivered by Bermudez, C. J. The appellee contends that the appeal should be dismissed, because the judgment appealed from is unsigned and because the appellant has acquiesced in it. I.- This judgment is one dissolving an attachment under which defendant’s property was seized. It appertains to the class of judgments or decrees, known as interlocutory, which are pronounced on preliminary matters, in the course of the proceedings and which do not decide on the merits. It doos not belong to the other class of judgments, technically termed definitive or final, wliich decide all the points in controversy, between the parties, which constitute res judicata and become executory, after signature. C. P. 538, 539. The law requires that the judge shall sign all definitive or final judgments— C. P. 546; but it does not exact this formality as to interlocutory judgments. In the case of Cary vs. Richardson, 35 Ann. 505, this court took pains to establish the poiiited differences which exist between 'interlocutory and final judgments. A reference to that decision, establishes, beyond dispute, ‘that this first ground is of no avail in the present instance. [286] ii. There can bo no doubt that, if the appellants have acquiesced in the judgment appealed from, they can have no standing hero to question its correctness. Appellee claims that, because, after the judgments dissolving the attachments had been rendered, “ plaintiffs have proceeded in the lower court, talcing defaults, forcing' an answer and pleading and trying pleas as against defendants and intervenors,” “in the ordinary manner, * * * they have aequiesced in the judgment of the lower court and abandoned the appeal.” Surely, the persistance by legal proceedings, of plaintiffs to have their rights recognized and enforced for the payment of the sum claimed, can not serve as a foundation for a charge of acquiescence. It has not been shown and it cannot be conceived, how it can bo deduced from any of the acts stated, that the plaintiffis and appellants have admitted the correctness of the judgment, or have ratified it, so as to divest themselves of the right of having it reviewed on appeal. None of those acts could have authorized the sheriff to release the property attached. Had the plaintiffs done anything, from which it could have been inferred that they had sanctioned or acknowledged the propriety of the judgment and which, in itself, would have justified the sheriff in turning over the property seized, to the defendant, — quito a different question would have been presented. 40 Ann. 028. But such not being the case, the second ground of the motion to dismiss is likewise untenable. The motion is denied.