Robinson v. Belt

56 F. 328, 5 C.C.A. 521, 1893 U.S. App. LEXIS 2071

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 29, 1893
• Docket: No. 217
• Status: Published

Opinion

CALDWELL, Circuit Judge.

On the 30th of December, 1891, J. M. Robinson & Co. brought suit in the United States court for the Indian Territory against J. C. Belt to recover the sum of §1,300. An order of attachment. was sued out in the action, which was levied on a stock of general merchandise and other personalty, as the property of the defendant, Belt. C. M. King intervened in said action, and filed an interplea claiming the attached property under a deed of assignment executed by J. C. Belt to him prior to the levy of the attachment, whereby said property was conveyed to him as assignee in trust for the creditors of said Belt. The deed of assignment was made part of the interplea. To this interplea, J. M. Robinson & Co., the plaintiffs in the attachment suit, interposed a general demurrer, which was by the court overruled; and thereupon the plaintiffs took an exception to said ruling, and sued out this' writ, of error. There is no final judgment on the inter-plea, and no order or judgment whatever thereon, other than the order overruling the demurrer thereto.

The act of congress creating this court (26 Stat. p. 826, c. 517) confers on it “appellate jurisdiction to review, by appeal or writ of error, final decision” in the district and circuit courts, in the class of cases to • which this appellate jurisdiction extends. The only exception to the rule restricting appeals and writs of error to final decrees and judgments is found in section 7 of the act, which' provides that an appeal may be taken from an interlocutory order or decree granting or continuing an injunction. The order of the court overruling a demurrer to an interplea is not a final judgment. Elliott’s App. Proc. §§ 80, 82; Slagle v. Bodmer, 58 Ind. 465; Banking Co. v. Knaup, 55 Mo. 154; Griffee v. Mann, 62 Md. 248; Kirchner v. Wood, 48 Mich. 199, 12 N. W. Rep. 44. A final judgment or decree, within the meaning of the act regulating appeals to this court, is one that terminates the litigation on the merits, so that in case of affirmance the court below will have nothing to do but to execute the judgment or decree it originally rendered. Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. Rep. 15; Grant v. Insurance Co., 106 U. S. 429, 1 Sup. Ct. Rep. 414; St Louis, I. M. & S. R. Co. v. Southern Exp. Co., 108 U. S. 24, 2 Sup. Ct. Rep. 6; Ex parte Norton, 108 U. S. 237, 2 Sup. Ct. Rep. 490. if the plaintiffs in error were content to rest upon their demurrer, they should have so advised the court, and permitted the inter-pleader to take finM judgment on his interplea.

The writ of error is dismissed, at the cost of the plaintiffs in. error.