Opinion
November 1806.
An appeal lies only from a final judgment, and therefore no appeal lies to a judgment of respondeat ouster on overruling a demurrer to a plea in abatement. [Acc. Carroll v. Caldwell, M. Y. 78, citing this case; and see Code, 3157, and 5 Cold. 631.]
When a case is brought up, the Appellate Court will review all interlocutory proceedings. [Acc. Chambers v. Haley, Peck, 158; Welsh v. Marshal, 6 Y. 455; and see note to Suggs v. Suggs, 1 Tenn. 3.]
DICKINSON had moved to dismiss an appeal from me County Court of Davidson.
The case was, that there had been a plea in abatement in the County Court, to which there was a demurrer. The plea was overruled and judgment of respondeas ouster, from this judgment the appeal was obtained.
STUART and WHITE argued e contra, relying upon Tay. 33; Com. Dig. title error.
An appeal will not lie agreeably to our law, in ordinary cases, unless from a final judgment. Had the plea been sustained there might have been an appeal, for then the plaintiff would have been out of court, but, as the case stood, the defendant should have answered over, and, upon the case coming here after final judgment, we would then look into the interlocutory proceedings. If an appeal was allowed upon intermediate proceedings we might have several in the same cause. If the cause were to be taken up here, and the plea in abatement not supported, we should have to send the cause back to the County Court for trial, and upon the final judgment it might come here again.
The appeal must be dismissed.
ORIGINAL NOTE. — The above decision is conformable to the practice of the civil law. 1 Bro. Civil Adm. Law, 494. See also 4 Mass. 107; 1 Call, 54; 1 Day, 27.