(Download) "Ringling v. Biering Et Al." by Supreme Court of Montana * eBook PDF Kindle ePub Free
eBook details
- Title: Ringling v. Biering Et Al.
- Author : Supreme Court of Montana
- Release Date : January 20, 1928
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 60 KB
Description
Appeal ? "Final Judgment" ? Striking Cross-complaint ? Judgment not Appealable as "Final." Appeal ? Right Statutory ? "Final Judgment." 1. The right of appeal did not exist at common law; it is purely statutory, and unless a judgment appealed from as a final judgment authorized by section 9731, Revised Codes 1921, and defined by section 9313 as "the final determination of the rights of the parties in an action or proceeding," is in reality final ? not merely interlocutory ? an appeal therefrom does not lie. Same. 2. The Code of Civil Procedure contemplates but one final judgment in an action, and in the absence of a clear showing that an intermediate order was intended as finally disposing of the action or a particular part thereof, it will not be presumed on appeal that the court attempted to dispose of the case piecemeal by successive final judgments, each covering a part of the matters in controversy. Same. 3. For appeal purposes, a judgment in an action will be considered as final only when it terminates the litigation, leaving nothing to be done other than its enforcement, or completely and finally disposes of some branch or part of the cause which is separate and distinct from the other parts of the case, ? it will never be considered as final unless the party in whose favor it is rendered obtains a benefit therefrom without the necessity of further proceedings in the action. Same ? Judgment Dismissing Cross-complaint Interlocutory, not Final ? Appeal Does not Lie. 4. Under the above rules, held, in an action to permit plaintiff to offset a judgment in defendants favor against promissory notes executed by them and held by him, to the complaint in which defendants answered setting up affirmative defenses and interposing a cross-complaint praying cancellation of the notes and for damages for breach of contract, which pleading was stricken from the files on motion of plaintiff as sham, whereupon defendants procured the entry of a judgment in plaintiffs favor "upon the merits" dismissing the cross-complaint and appealed therefrom, that the judgment was not a final judgment, but an interlocutory - Page 392 one, made in progress of the determination of the issues to be finally considered in rendering a final judgment in the action, and therefore was not appealable.
 "Ringling v. Biering Et Al." by Supreme Court of Montana * eBook PDF Kindle ePub Free){kind=link}