Blaine County Nat. Bank v. Jones , 45 Idaho 358 ( 1927 )

Appellant brought this action to foreclose a mortgage on certain lands in Blaine county. Respondents set up in their answer a total failure of consideration and a breach of certain statutory covenants implied, under the provisions of C. S., sec. 5384, from the use of the word "grant." Respondents also interposed a plea of abatement, asking that the action be abated until this court finally determine the case ofAlbrethsen v. Wood River Land Company. A jury was called and served in the trial court. Certain interrogatories were submitted to it, all of which were answered favorably to respondents. The court then rendered its decree as follows:

"It is hereby ordered and decreed that the plaintiff take nothing by this action and that said action be and is hereby abated until proof be submitted herein showing whether or not the judgment in the case of Albrethsen v. Wood River LandCompany et al., referred to in the findings of fact and conclusions of law herein, has become final and proof of said judgment submitted to this court."

Thereupon appellant appealed and respondents moved to dismiss the appeal on the ground that there has been no final judgment by the trial court and that an appeal will not lie before a final judgment has been entered.

Appellant contends that the decree of the trial court that "plaintiff take nothing by this action" finally disposes of the matter and leaves nothing to abate, and that the attorneys for respondents, in their brief submitted to the trial court, called the attention of the trial judge to the fact that the judgment in Albrethsen v. Wood River Land Company had become final and that the trial court must take judicial notice that such decree was entered.

C. S., sec. 7152, provides an appeal may be taken to the supreme court from a district court —

"From a final judgment in an action or special proceeding commenced in the court in which the same is rendered; from a judgment rendered on an appeal from an inferior court; from a judgment rendered on an appeal from an order, decision or action of the board of county commissioners; within ninety days after the entry of such judgment."

Under the statutes and constitution of this state, appeals can only be taken from judgments that are final, or those from which appeals are specifically provided for. (Weiser Irr. Dist.v. Middle Valley etc. Co., 28 Idaho 548, 155 P. 484.) This court in Lamberton v. McCarthy, 30 Idaho 707, 168 P. 11, held that a final judgment is "one which disposes of the subject matter of the controversy or determines the litigation between the parties on its merits," following the case of Potter v.Talkington, 5 Idaho 317, 49 P. 14. In Thiessen v. Riggs,5 Idaho 21, 46 P. 829, it was held that where the record shows no final judgment or other final disposition of the case in the district court, the appeal will be dismissed.

An order or judgment staying proceedings is not appealable. (3 C. J. 474, sec. 296.) The supreme court of California, inRhodes v. Craig et al., 21 Cal. 419, where an order was made in an action pending in the district court staying all proceedings therein until the further direction of the court, held:

"The difficulty, however, with the present case is that no appeal lies from the order of the court. It is not an injunction against the parties in another action; it is a simple order staying proceedings in the same action. The remedy of the plaintiff is not by appeal, but by the application for a mandamus to compel the court to proceed."

See, also, Avery v. Superior Court, 57 Cal. 247.

The decree of the trial court having failed to determine finally the controversy between the parties, we recommend that the appeal be dismissed.

Babcock and Adair, CC., concur.