Kernodle v. Tatum

51 Tenn. 312

• Court: Tennessee Supreme Court
• Decided: April 19, 1871
• Status: Published

Opinion

SNEED, J.,

delivered the opinion of the Court.

The appeal in this cause was prematurely granted, and the cause- must be stricken from the docket. The appeal is taken from a decree of the Chancellor, overruling the defendants motion to dismiss the bill. The Court below has never lost its jurisdiction of the cause.

The defendant had filed a demurrer to the bill, but it seems no action was taken upon the demurrer. Afterwards he moved to dismiss the bill, which the Chancellor overruled, and required the defendant to answer. The defendant thereupon appealed.'

There are certain interlocutory orders and decrees from which a Chancellor in his discretion may allow an appeal. They are enumerated in the statute.

A decree which, though not final, yet determines the principles involved in the cause, may be appealed from, and so of a decree ordering an account, or a sale or partition, before the account is taken,, or the sale or partition is made; or overruling a demurrer; or one of several parties whose rights are settled by the decree, may be allowed an appeal: Code 3157. But appeals in these cases are not matters of right, as in case of final decree, but they rest . in the sound discretion of the Chancellor.

Tbe Chancellor cannot allow an appeal from a decree overruling a motion to dismiss a bill.

Let tbe cause be stricken from tbe docket of tbis Court.