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Mahoney v. Elliott

Mahoney v. Elliott, 69 P. 108 (Idaho 1902)

Court: Idaho Supreme Court · State Highest Courts
Decided: May 19, 1902
Judges: Quarles, Stockslager, Sullivan
Citations: 69 P. 1088 Idaho 3561902 Ida. LEXIS 21

Cited by 3

Syllabus

Appealable Orders. — Paragraph 3 of section 4807, of the Revised Statutes enumerates the orders from which an appeal may be directly taken, and all other orders can be reviewed only on an appeal from a final judgment. Motion to Dismiss Appeal. — An appeal that is taken directly from an order that can only be reviewed on an appeal from a final judgment will be dismissed on motion. (Syllabus by the court.)

Summary

APPEAL from District Court, Shoshone County. cite no authorities upon point decided. Section 4807, paragraph 3 of the Revised Statutes of the state of Idaho enumerates the orders from which an appeal may be taken to the supreme court; all other orders can be reviewed only on an appeal from a final judgment, and after an exception was taken. This court has passed upon the question which is presented by this motion for dismissal. It has repeatedly held that sustaining or overruling a demurrer or an order to dismiss is not a final judgment. (Durant v. Gomegys, 3 Idaho, 67, 35 Am. St. Rep. 267, 26 Pac. 755; Ah Ele v. McLean, 3 Idaho, 70, 26 Pac. 937; Hodgins v. Harris, 4 Idaho, 517, 43 Pac. 72; Thiessen v. Riggs, 5 Idaho, 21, 46 Pac. 829; Adams v. McPherson, 3 Idaho, 117, 27 Pac. 577.) The only method of review from an order of dismissal is by appeal from the final judgment entered pursuant to said orders. (Hibbard v. Murphy, 39 Cal. 145; Dimmick v. Derringer, 32 Cal. 492; Thomas v. Anderson, 45 Cal. 43; Stebbins v. Ravage, 5 Mont. 253, 5 Pac. 278.)

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Sullivan

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SULLIVAN, J.

— This is a motion to dismiss the appeal, and based on the ground that the appeal is from an order not made appealable by the provisions of section 4807 of the Revised Statutes of 1887. This appeal is from an order quashing and dismissing the information in a proceeding where the appellant sought to remove the county commissioners of Shoshone county under the provisions of section 7459 of the Revised Statutes. Paragraph 3, section 4807, enumerates the orders from which an appeal may be taken, and all other orders can be reviewed only on an appeal from a final judgment. The record does not show any entry of judgment; it simply shows that an order was made quashing the information. After the making of said order, the appellant might have amended said information had he desired to do so, and, in case he did not, his only procedure to review said order was to stand on the information, have judgment entered, and appeal from the judgment. An appeal that is taken from a nonappealable *358 order before tbe entry of judgment must, on motion, be dismissed. The appeal is therefore dismissed, with costs in favor of respondents.

Quarles, C. J.} and Stockslager, J., concur.

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Cited by 3 cases

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State Highest Courts3

Relies on it most ⓘ

Evans State Bank v. Skeen167 P. 1165 (Idaho 1917)
Weiser Irrigation District v. Middle Valley Irrigating Ditch Co.156 P. 484 (Idaho 1916)
Salchert v. Rice276 P. 305 (Idaho 1929)

Most recent

Salchert v. Rice276 P. 305 (Idaho 1929)
Evans State Bank v. Skeen167 P. 1165 (Idaho 1917)
Weiser Irrigation District v. Middle Valley Irrigating Ditch Co.156 P. 484 (Idaho 1916)

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