Brennan v. Lucklear

1 Wilson 59

• Court: Indiana Superior Court
• Decided: July 1, 1871
• Status: Published

Opinion

Newcomb, J.

The plaintiffs appealed from an order made-fey Judge Blair, setting aside a restraining order made by him on the ex parte application of plaintiffs, before the time-had expired for which the restraining order had-been granted!. The defendant has interposed a motion to dismiss the-appeal, on the ground that the order was not one from which an appeal lies to the General Term.

The'25th Section of the Act organizing this Court, provides for an appeal to the General Term from the decision, of a single Judge, and-those eases only, where, if the decision» complained of had been rendered- by the Circuit Court, an. appeal would lie from that tribunal to the Supreme Court* It is a general rule of practice that an appeal does not lie from an inferior- to the Supreme Court, except from a final judgment of such inferior court. The only exceptions to-this rule are made- by the statute*

Among those excepted eases is an interlocutory order,, “granting, or dissolving, or overruling motions to dissolve an injunction intern?, and granting an injunction, in vacation^' 2 G. & H., 277, Sec. 576. It seems to me a clear proposition, >that this appeal does not come within the above exceptions to the general rule, that an appeal lie only .from a final /judgment.

The restraining order was noPan injustice, consequently 'the defendant could not have appealed from that order, vide Cincinnati & Chicago R. R. Co. v. Huncheon and another, 16 Ind., 436.

The order dissolving the restraining order was not appeal-able for two reasons: First, it was nut the-dissolution of an injunction, for no injunction had been granted. Second, The «order was not made 'in term, but in vacation.

The case does not come within any exception laid down an the statute, and we’ have no power to legislate to .cover .■such cases.

The defendant’s motion is therefore well taken, and the Appeal must be dismissed.