Opinion
July Term, 1818.
From Nash.
It Seems that an appeal may be taken from an interlocutory order of the County Court granting leave to amend, and that on confirming the judgment of the County Court a procedendo will issue from the Superior Court.
THIS was a suit commenced before a justice of the peace and came to the County Court by appeal. In the County Court the defendant pleaded in abatement that the warrant was not made returnable within thirty days, Sundays excepted; whereupon plaintiff moved for leave to amend by inserting in the warrant the words, "within thirty days, Sundays excepted," which was granted by the court.
The defendant thereupon appealed to the Superior Court, where the plaintiff objected that the appeal was improperly taken in a matter from the decision of which no appeal would lie.
The case was referred to this Court to say whether the appeal was properly taken and could be sustained, or whether the Superior Court had no jurisdiction of the cause; and if the cause be remanded to the County Court, whether any, and what judgment shall be rendered in the Superior Court.
I am of opinion that the County Court did right in allowing the amendment of the warrant, and that the judgment thus pronounced by them was so (425) closely connected with a final determination of the suit that it is quite within the equity and meaning of the act of 1777, the subject of appeal by the party dissatisfied. It would be perhaps impossible to draw the line, in the abstract, between those orders made by the court which may be appealed from and those which cannot; and it would probably be safer to decide upon each case as it arises. If I were to lay down a general rule, it would be, that wherever the question presented to the County Court is such that a judgment upon it one way would put an end to the cause, it may be appealed from; but where the court cannot give such a judgment upon it as would decide the cause, or directly affect its decision, it cannot be appealed from. If the County Court had disallowed the amendment, the warrant must have been abated, and the plaintiff, beyond all question, might then have appealed. By allowing the amendment, the defendant was deprived of a defense upon which he chose to rest his case, and one which involving also a question of law, with the determination of which he was dissatisfied, he had a right to ask for the opinion of an appellate court.
I hope I shall not be understood as sanctioning an opinion that every order made by court in the progress of a cause may be appealed from. There are many that must be confided solely to their discretion, the proper or ill exercise of which cannot be tested by any rule of law; but the question as to this amendment I consider in a very different light, and depending upon fixed principles repeatedly adjudged by this Court. Being, therefore, of opinion that the County Court did right, and that the judgment appealed from must be affirmed, it follows that a procedendo must issue, and that the appellee recover the costs of the appeal.
When an application is made, either by a plaintiff or defendant, to amend any part of the (426) proceedings, though it is within the discretion of the court to allow it, yet that is a legal discretion, and to be exercised according to the rules of law. All the instances of judicial discretion are for the attainment of justice, and leave the court at liberty to do justice "all around." When the application is made in respect to a matter not relating to the final determination of a suit, as for a continuance, or the like, as the determination of the court in such case can have no possible influence upon the ultimate decision, and is in truth nothing but a refusal then to consider, it would be absurd to allow an appeal in such case. For the party appealing would defeat his own object, and the opinion of the Court above could in no way be of service to him. But where the application is to amend the proceedings, that, if allowed, may deprive the defendant of a good defense upon the trial; and consequently is affording, in like manner, to the plaintiff a correlative benefit. The law, from the state of the pleadings, afforded this advantage to the defendant; the law also required and authorized the court to relieve the plaintiff from this difficulty, according to these rules of legal discretion; if the court refuse to exercise this authority when these rules require it, or to exercise it, but in a manner in which it should not, there is in each way an injury done to the party, and which can be redressed by an appeal.
To apply these principles to the present case: The writ is defective; the party applies to the court to amend; the acts of Assembly vesting it with the power, entitle the party to claim it; if it refuses its aid when it should be extended, the party is injured, and must lose his suit, unless he can appeal. It is no answer to say, let him wait till the final determination of the case and then appeal upon the whole case; for if it be the case of a defendant who wishes to avail himself of some thing in mitigation, the accumulated costs will probably place him in a worse situation with this sort of remedy than he (427) would be by submitting in the first instance. As to making a motion in the court below and spreading it on the record, as has been said to be the usage in the Superior Courts, I can see no possible benefit to be derived from that; for if it be a partial defense, there will still be a saddling of the party defendant with the costs of both courts, without the least necessity.
And as to a party's staving off a cause by perpetually appealing, that is for the Legislature to provide against, who already have supposed (as we must presume) that the party cast is sufficiently punished by the payment of costs to prevent an appeal purely for delay.
The words of the act of 1777 are that when any person or persons, either plaintiff or defendant, shall be dissatisfied with the sentence, judgment or decree of any County Court, he may pray an appeal to the Superior Court. These words should not by construction be confined to a final judgment, if in so doing we are to leave remediless any possible case where by appeal the court above would have power to afford relief.
I therefore think there should be judgment that the amendment was properly allowed by the court, thereby confirming their judgment, and that a procedendo issue to the same court. The judgment of this Court, therefore, being in favor of the appellee, he must have judgment also for his costs.
HALL, J., concurred in the opinion of SEAWELL, J.