Dieterich v. Dieterich

48 App. D.C. 356, 1919 U.S. App. LEXIS 2323

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 3, 1919
• Docket: No. 3171
• Status: Published

Opinion

Mr. Chief Justice Smyth

delivered the opinion of the Court:

This is an appeal from an order refusing permission to amend an answer and cross bill, and dismissing the answer and cross bill.

It is the law that an order dismissing a cross bill is not final, and hence not appealable. In Cross v. De Valle, 1 Wall. 5, 17 L. ed. 515, it was said that “a cross bill is a mere auxiliary suit and a dependency of the original;” and it was ruled in Ayres v. Carver, 17 How. 591, 15 L. ed. 179, that “both the original and cross bill constitute but one suit,” and “any decision or decree in tire proceedings upon the cross bill is not a final decree in the suit, and, * * * not the subject of an appeal to this court. * * * The decree, whether maintaining or dismissing the bill, disposes of a proceeding simply incidental to the principal matter in litigation, and can only be reviewed on an appeal from the final decree disposing of the whole case.” See also Ex parte South & North Ala. R. Co. 95 U. S. 221—225, 24 L. ed. 355, 356. Of course an order merely denying leave to amend is not final.

Appellees ask us to retain the case as on a special appeal, but the appellant does not join in this request. The appellees are not aggrieved by the order made in their favor, and consequently have no right to seek its review. Besides a special appeal is granted on petition only. Code, sec. 226 [31 Siat. at L. 1225, chap. 851].

The appeal is dismissed for want of jurisdiction.

Dismissed.