Maysville & Lexington Railroad v. Punnett , 54 Ky. 47 ( 1854 )

Judge Simpson

delivered the opinion of the court.

An action was brought in the Payette Circuit Court, to procure a sale of the property, in a deed of trust, executed by the appellants to the appellees; and an application of tbe proceeds to the purposes of-' the trust.

1. The Court of Appeals has appellate jurisdiction only over final orders and judgments of other courts. (Code of Practice, 15th sec.) A final order is such an order as ceases to be in the power of the court after the term expires at which it is made, and is an order which terminates the action itself, or decides some matter litigated by the parties, or operates to divest some right, in such manner as to put it out of the power of the court to make any other order of the court after the end of the term, to place the parties in their original condition. 2. No appeal lies to the Court of Appeals from an order of the Circuit Court appointing a receiver to take charge of property conveyed in trust during the pendency of a suit to inforce the trust, and rent out the property, and take charge of. it, &c.

The court having made an order appointing a receiver to take into his possession and safe-keeping the mortgaged property, and to rent out a portion of it, for a limited term, an appeal to this court was taken from that order. A motion to dismiss the appeal has been made, and the only question which we have now to decide, is, whether or not an appeal lies from such an order.

This court has appellate jurisdiction only over the final orders and judgments of the other courts in this commonwealth. {Code of Practice, section 15.) When a final order has been made by a Circuit Court, its power over such an order ceases at the expiration of the term in which it was entered. The court, however, that made this order, has power to modify or abrogate it at any time during the pendency of the action. A final order either terminates the action itself, decides some matter litigated by the parties, or operates to divest some right, in such a manner as to put it out of the power of the court making the order after the expiration of the term, to place the parties in their original condition. The order in this case does not have this effect. It decides none of the matters litigated by the parties; and although it deprives the appellants of the possession of the mortgaged property, the order is temporary in its nature, and still remains completely under the control of the court that made it.

This order therefore has none of the characteristics of one that is final. It is merely provisional in its operation, and was made in pursuance of the 329 section of the Code. It is similar in its effects to some of the other provisional remedies provided by the Code; and if it be subject to an appeal, we are not able to perceive any reason why an appeal would not lie in all cases where attachments against property are ordered to issue by a Circuit Court.

Consequently, wc are of the opinion that the appeal was improvidently taken in the present case— that this court has no appellate jurisdiction over such an order; and the motion to dismiss it is sustained.

Wherefore, the appeal is dismissed.