Welsh v. Lambert

This action was instituted against the defendants to recover damages for the wrongful use and interference with the water of the South Fork of Weber river, and for a perpetual injunction restraining the defendants from obstructing, diverting or befouling the water of that stream above the plaintiff’s mill.

The question of damages was submitted to a jury, and it returned a verdict of “no cause of action.” Thereupon judgment for costs was entered against the plaintiff, in accordance with a memorandum of costs filed by the defendants. Afterwards the plaintiff made a motion to strike the cost bill, and one to strike a “certain paper entitled, ‘judgment on verdict,’ from the files.” These motions were overruled, and then this appeal was taken from the orders of the court in the premises. The *3respondents now challenge the standing of the appellant in this court by motion to dismiss. It is contended in support of the motion that the orders in question are not appealable, and that there is nothing before us of which we can take cognizance, because there is no bill of exceptions in the record. We are of the opinion that these points are well taken. Under repeated rulings of this court such orders are held not to be final judgments, and, therefore, under Art. 8, Sec. 9, Const., no appeal lies from them. Nor does the record contain a bill of exceptions, or show that any exception was taken to the action of the court.

For these reasons the appeal must be dismissed, with costs against the appellant. It is so ordered.