Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-09-27
OF THE SUPREME COURT.
PUBLISHED BY AUTHORITY.
E. @. SMITH. Reporter.
HAMS MANUFACTURING Co., Respond den,
JAMES NJ. WA1sH, appellant.

p D. 9ttft ~ tHfEG-FNf 2 /
JAMES NJ. Walsh, appellant
In THE SUPREME CoURr'0F THE TERR1.
TORY OF DAKOTA, At THE DncENBER
TERM, 1873. ,
Appeal from tie Clay County District G~rt.
1. AppeA-Faractice. An appeal will
lie from On order Of the district court
sustaining . demurrer to one Of the several
separate defenses' In a. action, while the
other issues raised In the district court re.
main undetermined, aud 40 final judgment
has been rendered In such action.
y 9. appellate Irisdiction Of Supreme
Court: Section 1859 OF the revised statutes
confers upon the supreme court Of this ter.
ritory the authority TO hear and determine
swrits Of error and appeals from final decis-
ions or judgments Of the district courts, and
not Independent appeals from orders made |
or decisions pronounced, which are 10 effect
merely introductory.
8. Final Judgment: No judgment 10
dual which docs not terminate the litigation
between the parties to the suit.
Trip & Boyles for appellant. n. Robbins
and Gamble Bros, for respondent.
PINo OF THE COURT.
Moody, j. This 10 an appeal from 40 or
der of the Clay county district court sustain
ing the plaintiff demurrer to the first par
agraph Of the defendant's answer. The de-.
murrer is as follows: sts. sB.r
THE plaintiff demurs to the arst defense
"in the %defendant's answer herein on the
ground that the same OF its face does not
!" fense."
Upon the trial of the issue Of law thus
formed the court made the following order
"This action having been heretofore
" brought to . trial on the issue of law
!" Joined, and after hearing argument of
:" counsel in support thereof, and In opposi-
I" tion,-ordered that said demurrer be sus-
!" tanned and that as to said first defense in
" the defendants amended answer herein
"the plaintiff have judgment bat with leave
" to defendant to amend said first defense
" within FIVE days after notice, on payment
/" of coats, unless defendant elect to stand
\" upon his defence. Let this order be enter.
" ed BY the clerk"
Upon this order no judgment was entered
and no further action taken, except there
appears the following. endorsement in no
ttproper way authenticated by being incor-
porated into q. bill Of exceptions or judg-
ment, to.wit: 4..r III
+ "The defendant elects to, stand upon the
demurrer" a .s5l
Nor does there appear any undertaking
to perfect the appeal. The view We have
taken Of this appeal disposes Of it without
the necessity of passing upon the effect o.
these irregularities, but they are noticed as
indicating 5 very loose, and unsatisfact or
practice TOO often INDUCED in by counse! il
bringing transcripts TO this court.
The defendants amended answer contain
eight paragraph, several of which are dis
tinct and separate defenses and to only on.
Of which-the frst-as 10 seen, the plaintiff
dsnurred. Presumably the action il pro
cesding upon the other issues of fact thu
made in the case.
The only question l care TO discuss, anG
which 10 decisive OF this appeal 10 this
Will!this court nsthe exercise of the appel
late power and jurisdiction conferred upon
it, hear aud determine 10 appeal from an or
der sustaining Q demurrer 10 q part of /,
pleading without any judgment thereon
and before there has been any lnal determi
nation Of the litigation between the parties
In other words will this court, allow p,rtiel
TO bring their cases here by piecemeal, du
ring the pendancy of the action 10 the dis.
trict court. and apparently for the purpose
i only Of obtaining the opinion of this cour
upon Q question of practice or law, aud per
baps wholly unnecessary TO- . complete ant
just deposition OF the, cause g. If BY 40!
law binding upon ehis coptt we are com.
+ pelled to perform this needless lab0f.a vi
however disastrous, in our opinion, it MAJ
be to the best interests of suitors, and caus.
ing, % it necessarily will. great and useles
delay and expense, and enabling litieiou
persons to use the courts 10 = manne
amounting frequently to Q depial Of lustice
These, reflections wall not be, deemed II
tinedswhsn We consider that, but twote-m
Of this court Q YER are or can 'wsllbe held
that the district couIts are sittipgist remot
distances from tac seat Of government. oftel
with crowded and increasing calendars, an,
that the same judges constituting this coul
are compelled TO give all the time possibl
to their duties &c district judges.
But are We helpless to prevent this IN
doubted evil? This court is the creature
congress. By the, acts of congress and b.
,hs force Of those acts only has this conf
any existence. Its appellate powers an
jurisdiction are derived solely from thos
acts. The law of no other tribunal ca
confer them. SJusteEso Sfafs - congfe@ hs
con&treds appellate spoxer andjqrsdictiol
either by direct enactments or through de
1 legated authority, il possesses them and cal
exercise them, audit dSesSnot possess an
cannot exercise other or greater power
Nov What .Eate The GsppSlhts powsfS an,
jurisdiction conferred by congress upon thi
1courI? ghe E.vsA E.s. set iscs ,sas
Section 1869 Of the revised statutes Of tn
4 United States provides. as5Qa7
"Wris of error, bills of exceptions an,