Brast v. Kanawha Oil Co.

33 S.E. 302, 46 W. Va. 613, 1899 W. Va. LEXIS 88

• Court: West Virginia Supreme Court
• Decided: May 6, 1899
• Status: Published

Opinion

Dent, President:

M. A. Brast moves the Court to vacate an order granting an appeal from an ex farte order of the judge of the circuit court of Wetzel County granting an injunction. Such an order is not appealable.. It is not an adjudication between parties. One side has not been heard, and until he moves the court that granted the injunction to correct it, he has no right of appeal. Appeals are to correct errors committed after hearing, and not to review mere preliminary orders, madie in the absence of one of the litigants. Such orders are. still in the breast of the court until finally heard and determined. The party affected thereby has an easy remedy by motion, and an appeal will not lie until sucb motion proves ineffectual. 2 Enc. Pl. & Prac. 96; Aldinger v. Pugh, 57 Hun, 181, 10 N. Y. Supp. 684; Gibson v. Martin, 8 Paige, 481; Skidmore v. Davis, 10 Paige, 816; In re Johnson’s Estate, 27 Hun, 538; In re Dunn (Sup.) 14 N. Y. Supp. 14; State v. District Court First Judicial Dist. 52 Minn. 283, (53 N. W. 1157.) Therefore the appeal in this case is dismissed, as improvidently awarded.

Dismissed.