#### DAVID B. *HILL, pl'ff in error, vs.*EDWARD BLOOMER, *def't in error,*

*)*> *Error to Dane county.*)

A writ of error will not lie to reverse an interlocutory judgment. Tho judgment must bo final, leaving nothing to be done in the cause, before it oan’bo brought into the supreme court for reversal.

Hill brought an action of replevin against Bloomer, in the Dane District Court. On the motion of Bloomer, the Court quashed the writ, and rendered a judgment for damages in favor of the defendant, and awarded a writ of inquiry which has not been yet executed. Hill sued out a writ of error to reverse the judgment of the District Court; and at the present term, Bloomer, by his coun*124sel, moved the court to dismiss the writ because no final judgment had been rendered in the case.

Dunn, fordef’t in error, and in support of the motion:

The record in this case shows that no final judgment has been given. A judgment for damages was given upon quashing the writ, and a writ of inquiry awarded which has not been executed. The judgment is only interlocutory, and a writ of error will not be in such cases. This is the rule of law in till cases, and the Organic Act only authorizes the writ of error where the judgment is final.

ARNOLD, contra:

This is not an ordinary interlocutory judgment given in the progress of the cause, but one that affectually concludes the rights of the parties as to the subject matter of the suit, and for this purpose it is final; see Stat. Wis. 275, sec. 30, upon which the judgment was rendered. The judgment is final as to the rights of the parties in respect of the property replevied, and the damages are only accessory to the judgment. In such a case a writ of error will lie to reverse the judgment before the writ of inquiry is executed; 9 Viner’s Abridgt. 5C5; Graham’s Prac. 933.

Moses M. Strong, in reply:

The judgment to which a writ of error will lie, must be a judgment, that not only concludes the rights of the parties, but one that is so perfect in itself that it can be carried into effect without any further action of the court. The authorities that have been read, go no farther than this. They relate principally to the action of ejectment. Under our own statute in relation to that action, the principle would apply. The judgment, in ejectment would be complete as to the recovery of the land; the damages would have to be gained by a continuation of the proceedings and filing a new declaration.

By an act of the Legislature passed at *the*last session, this court is authorized in case of affirmance of judgment, to enter up the proper judgment here and award execution. In this case, if the judgment should be affirmed, there is nothing on which the court could award execution, for the sum to *be*recovered is not ascertained.

Judge Miller

delivered the opinion of the Court, quashing the ■ Writ:

In the District Court, David Hill was plaintiff and Edward *125Bloomer defendant, in an action of replevin. On motion of the defendant, the writ was quashed, and the court ordered, that the plaintiff take nothing by his writ, and that the defendant recover of the plaintiff his costs, and further, on motion of defendant, the court awarded a writ of inquiry, to assess the value of the property replevied and the damages for the detention thereof. A writ of inquiry was issued but is not yol executed. To reverse these orders of the District Court, a writ of error was sued out, which the defendant has moved this court to quash, for the reason that there is no final judgment or decision of the said District Court.

By the organic law of the Territory, writs of error, bills of exceptions, and appeals in chancery causes, shall be allowed in all cases, from the *final*decisions of the District Courts to the Supreme Court, under such regulations as may be prescribed by law. The only question to be determined is, whether there is a final decision, or judgment in this cause in the District Court? By section thirty of the act concerning replevin, page 275 of the statutes, if the property specified in the writ has been delivered to the plaintiff, and the'defendant recover judgment by discontinuance, or non-suit, such judgment shall be, that the defendant have return of the goods and chattels replevied, unless he shall elect to waive such return pursuant to any of the provisions contained in said statute. Now, by considering the order quashing the writ, equivalent to a judgment by discontinuance or non-suit, with a judgment that the defendant have return of the goods and chattels replevied, the cause would be finally decided between the parties in the District Court; the rights of the parties would be concluded, and the plaintiff would be entitled to his writ of error. But by the thirty-second section of the same act, the defendant, whenever he shall be entitled to a return of the property replevied, instead of taking judgment for such return as above provided, may take judgment for the value of the property replevied, in which case, such value shall be ascertained *by*the jury on the trial, or by a writ of inquiry, as the case may require. The defendant elected to take judgment for the value of the property replevied, and there not having been a jury empannelled in the cause, a writ of inquiry was awarded to assess the same. The plaintiff having received the property into his possession from the sheriff on the writ, the mere order of the court quashing the writ, or awarding a writ of inquiry, does not disturb the possession, or subject the *126plaintiff- to the payment of damages and costs. The writ of in'quiry must be executed and confirmed, and judgment entered on the same for the amount found by the jury, before the plaintiff can be affected. This may never be done; and until it is done, the plaintiff’s possession of the property is as perfect as if the writ had not been quashed. It is apparent, that this court cannot take cognizance of cases, in judgment, or proceedings merely interlocutory; but the decision of the District Court must be final, and of which a record can be made, and which shall decide the right of property; *Yates vs. The People,*6 John. Rep. 401. The English practice referred to in the argument, is not applicable here. There a man may have a writ of error before all parts of the cause are decided, as on demurrer, or before a writ of inquiry of damages is executed; 1 Roll’s Ab. 751. A writ of error will there lie on a fine and recovery, though the word judgment, or any thing in the form of the judgment, is not to be found in the proceedings, 1 Roll’s Ab. 747. In New *York,*a *writ*of error *will not lie until*a final determination of all the issues joined on the court below, unless from the record it is apparent itself, that the judgment rendered in the court below, disposes of the whole matter; *Pete vs. McCrew,*21 Wendell, 667. In Pennsylvania, a writ of error lies in all cases, in which a court of record has given a final judgment; *Commonwealth vs. The Judges,*3 Binney, 273. Hence, a writ of error does not lie upon an interlocutory judgment given for the plaintiff upon a demurrer in an action sounding in damages; *Logan vs. Jennings,*4 Watts, 355. Nor does it lie upon a judgment *quod computelin*account render; *Butler vs. Zeigler, 1*Penn. Rep, 135. In the case of *The Life and Fire Insurance Company of New York vs. Adams,*9 Peters, 602, Chief Justice Marshall remarks: “That the Supreme Court, in the exercise of its ordinary appellate jurisdiction, can ta.ke cognizance of no case, until a final judgment or decree shall have been made in the inferior court. Though the merits of the case may have been substantially decided, while any thing, though merely formal, remains to be done, this court cannot pass upon the subject. If, from any intermediate stage in the proceedings, an appeal rnight.be taken to the Supremo Court, the appeal might be repeated to the great oppression of the parties.” From the tenor of these decisions in the Supreme Courts of the United States and in the states of New York and Pennsylvania, we cannot consider the judgment entered by the *127District Court of Dane county, a final judgment in the cause. — ■ The value of the property is to be ascertained by a jury, which is a matter of substance, and much more essential than mere matter of form, as required by the Supreme Court of the United States. And the execution of the writ of inquiry, is quite as essential to the final disposition of the cause, as the report of auditors on the judgment *oi'quod computel*in Pennsylvania. If the District Court has erred, or shall hereafter err in any of the subsequent proceedings yet to be had in the cause, this court will correct the errors, upon a writ of error sued out at the proper time.

Aenoid and Catlin, forpPffin error.

Dunn and Moses M. Strong, for def’t in error.

This writ of error must be quashed.