Brady v. Furlow, Price & Furlow

The complainants in the Court below made a motion to have the cause set down for trial, which motion .was resisted, on the ground that the claims of the complainants in that bill, bad been adjudicated by a former decree of the Court, in a cause in which the complainants, with others, were parties. The Court, upon the inspection of the record, not being satisfied that the claim of the complainants had been finally adjudicated by that former decree, ordered the cause to be set down for a hearing, to ascertain that fact, which order of the Court was excepted to, and brought up to this Court for review.

A motion is now made to dismiss the writ of error, on the ground that the order of the Court below, which was excepted to, is not such a final disposition of the cause as will entitle him to bring up that decision to this Court, upon a bill of exceptions thereto, under the 4191st section of the Code. That section of the Code declares that no cause shall be carried to the Supreme Court, upon any bill of exceptions, so long as the same is pending in the Court below; unless the decision, or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the causa ; but *113either party may, at any stage of the cause, file his exceptions, have the .same certified, and entered of record until the final termination thereof, in the manner as provided by that section. The cause is still pending in the Court below, according to the express order of the Court, to which, exception is taken. The order setting the cause down for trial, was not such a final disposition of it as is contemplated by the Code, and, in our judgment, was prematurely brought here.

Let the writ of error be dismissed.