Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-09-26


1he 1sily 3ssSSsssl 9ststsiss
vANkToM DAKOTA
Friday Evening, Sept. rs, 1879.
OPINIONS OF THE SUPREME COURT.
PUBLISHED BY AUTHORITY.
E. q. SMITH. Reporter.
DECEMBER TERRI, 1873.
Hams MANUFACTURING Co., Re.po.dent,
JAMES N. WALSH, appellant.
In THE SUPREME CouRr OF THE TERa1.
TORY OF DAKOTA, AT THE DHCEnBRR
Tenn, 1878.
appeal from tie Clay County Distris Court.
J.. Appeal-Pradios. An appeal will
not lie from an order of the district court
sustaining a demurrer to one of the several
separate def,nses in an action, while the
other issues raised in the district court 70.
main undetermined. and no final judgment
has been rendered IN such action.
2. appellate yurisdiction Of Supreme
Gsrt: Section 1869 Of the revised statutes
coufers upon the supreme court Of this ter
ritory the authority 70 hear and determine
writs 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 in effect
merely iaterlocutory.
8. Final Judgment: No judgment is
final which does not terminate the litiga-
ton between the parties to the suit.
Trip & Boyles for appellant. N Robins
and Ga0ble Bros, for respondent.
OPINION OF THE COURT.
Moody j. This il an appeal from an
order Of the Clay county district court sus-
tanning the plaintiff demurrer to the first
paragraph Of the defendants answer. The
demurrer is - follows:
The plaintiff demurs to the FIRST de-
" Tense in the defendants answer herein on
!" the ground that the same ON its face doe
" not state facts sufficient TO constitute {.
" defense"
Upon the trial of the issue of Law thu
formed the court made the following
order:
This action having been heretofor,
" brought to 4 trial on the issue of lay
" gained, and after hearing argumen
Of counsel in support thereof ant
in opposition ordered that said de
" murrer be sustained and that ~ L
" said first defense in the defendant
" amended answer herein the plaintiff hav
" judgment bot with leave to defendant
" amend said first defense within FIVE day
after notice, on payment Of costs, unles
defendant elect to stand upon his defense
Let this order be entered by the clerk"
Upon this order no judgment WAS er
tered and no further action taken, excseE
there appear the following endorsement, i
no proper way authenticated by being il
corporated into q bill of exceptions
Judgment, to-wit:
The defendant elect to stand upon th
" demurrer"
Nor does there appear any undertaken
"a perfect the appeal. The view y
have have taken Of this appeal di
poses Of it without the necessity /,
passing upon the effect Of their irreeula
ties, but they are noticed As indicating
very loose and unsatisfactory practice t
often INDUCED in BY counsel in bringir
transcript to this court.
The defendants amended answer contain
eight paragraphs, several Of which are dil
tinct and separate defense, aud 10 only or
Of which-ths 6rrt-as 10 seen, the plsinti
demurred. Presumably the action in pr,
ceeding upon the other Issues Of fact the
made in the case.
The only question I care to discuss, ar
which 10 decisive Of this appeal 10 THU
Will this court in the exercise of the apps
late power and jurisdiction conferred up<
It, hear and determine an appeal from
order sustaining 4 demurrer to q part Of
: pleading without any Judgment thereo
and before there has been any final dete
: mination Of the litigation between Il
= parties? In other words will this cou
allow parties to bring their cases here i
i, piecemeal, during the peodsncy Of q
: scsion IN inc oAettlct court, en0 aPpStant
. for the purpose only of obtaining the OPT
= Z ion Of the court upon . question Of practi
: or Law, aud perhaps wholly unnecessary
E 2 complete and just disposition Of the caus
II BY any law binding upon this court I,
: are compelled 70 perform this needle
. labor, We shall yield obedience to such
enactment shoveyer disastrous, in our Cpl
. ion, it may be to the best interests Of %
: orr, and causing, - it necessarily will, grs
and useless delay and expense, and {
abling litigious persons to use the courts
manner amounting frequently 70 ! dem
LOT justice. These reflections will not
deemed i'll: Timed when We consider that I
two terms Of this court a year are OF. can
held that the district courts are either
remote distances from the seat Of govel