Scott v. White

1 Thompson 38

Opinion

Turley, J.:

An appeal will lie from an order to discharge an attachment, although it is merely a subsidiary proceeding.

Footnotes

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(1)

McKinney, J.:

The defect in the affidavit was amendable. The case differs from the case of Neil v. McReynolds, 8 Humph. 12, in which there was no affidavit. The/ Act of 1843, chapter 29, makes express provision for amendments. An attcahment may be issued under that act by a justice of the peace returnable to. the Circuit Court, where there is a cause already pending, just as upon an original cause.

Motion to dismiss appeal denied, and judgment reversed.

An appeal in error in a proceeding at law, lies only from a final judgment. Carroll v. Coldwell, Mar. & Yerg. 85; Butcher v. Palmer, 4 Cold. 248.

In a criminal proceeding no appeal lies except from a final judgment, Nolin v. The State, 6 Cold. 12. But no appeal or writ of error lies from a judgment in a proceeding under the writ of habeas corpus, State v. Gallaway, 5 Cold. 326. An appeal lies only from a final decree in chancery with the exceptions provided in section 3167 of the Code, taken from Act of 1863, ch. 3, sec. 17. See Elliston v. Hughes, 1 Head. 225; Gill v. Crud, 3 Cold. 295; Franklin v. Franklin, 2 Swan, 521. Befusing a motion to dismiss for want of Equity is not embraced in the foregoing exceptions. Crenshaw v. Watkins, vol. 2 of these Reports. And an appeal will not lie from a refusal of a chancellor to grant an injunction. Bruce v. Bank of West Tennessee, vol. 2 of these Reports. But a writ of error lies only upon a final decree in chancery, Code 3176. Helms v. Mynatt, 6 Cold. 215.

A judgment at law is final, when. McDonald v. McDonald, 5 Yerg. 307; Welsh v. Marshall, 6 Yerg. 455; Eldies v. Johnson, Peck 204.

A judgment at law is not final, when. Joslyn v. Sappington, 1 Tenn. 222; Carroll v. Coldwell, Mar. & Yerg. 78; State v. Dillon, 3 Hay. 174.

A decree in chancery is final, when. Berryhill v. M’Kee, 3 Yerg. 157; Delap v. Hunter, 1 Sneed, 101; Gill v. Creed, 3 Cold. 295 Overton v. Bigelow, 10 Yerg. 48; Allen v. Barksdale, 1 Head 238; Haywood v. Marsh, 6 Yerg. 69.

A decree in chancery is not final, when. Read v. Robb, 4 Yerg. 66; Delap v. Hunters, 1 Sneed 101, 105; Crenshaw v. Watson, reported in vol. 2, of these Reports; Mayse v. Biggs, 3 Head 36. But contra Banks v. Walker, vol. 2 of these Reports; Gill v. Creed, 3 Cold. 295.

Decree of County Court not final, when. Evans v. Shields, 3 Head 70