
    HARRIET H. GARNER, et al., Plaintiff and Respondent, v. THE HARMONY MILLS, Impleaded, &c., Defendants and Appellants.
    Before Sedgwick and Van Vorst, JJ.
    
      Decided April 7, 1879.
    Order overruling- demurrer, appealability of.—Interlocutory ORDERS, &C.
    
    The direction or order of the court, overruling the demurrers of the defendants, and that the plaintiff have judgment, &c., unless the defendants within twenty days, &c., pay the costs and serve an answer, is not appealable under section 1347 of the Code of Civil Procedure.
    Except in some cases like the present one, an interlocutory judgment, on an issue as to the merits, is a final determination of part of the issue, leaving the rest of the issue to be thereafter adjudged. An order or direction of the court cannot be deemed a judgment of any kind, unless on its face it determines some part of the issue.
    In this case the judgment is not pronounced. It is an order that plaintiff have judgment, &c., but the judgment must be entered before defendant is entitled to an appeal.
    - Appeal by defendant from order overruling demurrer and motion to dismiss appeal.
    
      Messrs. Luther R. Marsh and Homer A. Nelson, for appellants, urged:
    I. The appeal is properly taken. The Code confers the right to appeal. An appeal lies from an interlocutory judgment (Code, § 1349). This is an interlocutory judgment. The judgment appealed from': (1.) Recites the trial of the issues of law raised by the demurrer. (2.) It then orders and decides that the demurrer of the Harmony Mills be and the same is thereby overruled, with costs to the plaintiffs. (3.) It then proceeds to order and decide that the plaintiffs have judgment against the Harmony Mills for the costs herein, and for the relief demanded in the complaint, according to the prayer thereof, unless defendant pays costs, and answers. This surely is a judgment or decree ; either final, with a condition or defeasance, or interlocutory. It fixes or defines the rights of the parties, i. e., they are such as are claimed in the complaint. Now, if, on non-service of answer for payment of costs, nothing more need be done by plaintiffs, except for the clerk to put together the papers constituting the judgment roll, then the judgment or decree is final. If anything more is to be done to fix the plaintiff’s rights, then it is interlocutory. An interlocutory judgment or decree is an “'intermediate” or “between” judgment or decree. This is more than an order; it is a judgment or decree of some kind. If the decision had stopped after ordering that the demurrer be overruled with costs, as in Miller v. Sheldon (15 Hun, 220), there would be ground for claiming it to be simply an order. The decision expressly gives judgment; that is the word used, and judgment for the relief demanded in complaint. Is it not, then, a judgment ? Do plaintiffs now wish to take back their own words, and say, “ we didn’t mean judgment; we only meant an order” ? An interlocutory judgment, on overruling a demurrer, can be granted. This is recognized in Miller v. Sheldon (15 Hun, 220). This judgment determines everything except the form of. the final judgment. If defendant does not pay costs and answer, then, all that remains is for plaintiff to enter the final judgment authorized by this interlocutory judgment (Hoffman v. Barry, 2 Hun, 52). Both in substance and in form the determination of the court appealed from in this case is a judgment. (1.) In substance. A decision on a trial is defined to be a judgment, as distinguished from a decision on a motion, which is an order (Bentley v. Jones, 4 How. Pr. 335; King v. Stafford, 5 Id. 30; Hoffman 
      v. Barry, 2 Hun, 52). This is a decision' on a trial of issues of law, which issues were raised by the pleadings. (2.) In form. It settles the rights of the parties —adjudges them. It does not recite, according to the invariable and proper practice, “ on reading and filing the affidavits,” &c., but according to the common form of a judgment, it recites, “ this action, having been brought to trial on the issues of law raised herein, by the demurrers,” &c. The two cases decided in the fourth district of New York supreme court (Miller v. Sheldon, 15 Hun, 220, and Lacustrine F. Co. v. Lake Guano, &c. Co., Daily Register, Feb. 15, 1879), were appeals from orders simply.
    
      Messrs. Choate and Hugh L. Cole, for respondents, urged:
    I. An order of the special term, overruling or sustaining a demurrer, is not appealable (Lacustrine Fertilizer Co. v. Lake Guano and Shell Fertilizer Co., Daily Reg., Feb. 15, 1879. Supreme Court, Fourth Department, General Term, October, 1878; Miller v. Sheldon, 15 Hun, 220). The Code of Procedure, section 349, specifically authorized an appeal from an order of the special term, from a single judge, to the general term of the same court, sustaining or overruling a demurrer. The Code of Civil Procedure (new Code) has altered all this, and does not authorize an appeal from such an order. Section 1347, which takes the place of section 349 of the old Code, in providing for an appeal to the general term from orders of the special term, does not include the case under consideration ; clearly showdng the intention of the commissioners to do away with appeals in such cases. The object of the legislature, in enacting the amendment of 1851, to section 349 of the old Code, was to enable a party who was defeated upon the argument of a demurrer, to stay the trial of issues of fact, until the question of law which might render the trial uunecessary should have been finally settled upon an appeal from the decision of the special term on the demurrer. But it is apparent that this object could not be accomplished unless the party who is defeated at the general term, has the right to prosecute his appeal to the court of appeals. “If, therefore, there is any sufficient reason for allowing an appeal to the general term before final judgment, upon the same principle a like appeal should be allowed to the court of appeals” (Code Civil Procedure, Throop's Ed. § 1350, n.). The defendant’s remedy, in a case like the present, is by appeal from the judgment, whether final or interlocutory, entered upon the decision of the issues of law raised by the demurrer. Judgments, both interlocutory and final, are provided for in the new Code, and section 1236 provides that ‘ ‘ the clerk must keep among the records of the court a book for the entry of judgments, styled the ‘ Judgment Book.’ Each interlocutory or final judgment must be entered in the judgment book, and attested by the signature of the clerk,” &c. .....In the case at bar no judgment, final or interlocutory, was entered. An order overruling the defendants’ demurrer was duly entered. As the Code has made no provision for an appeal from this order, the conclusion is obvious. The case of Miller v. Sheldon (supra) arises under precisely the same circumstances as the case under consideration. In the case of Lacustrine Fertilizer Company v. Lake Guano and Shell Fertilizer Company (supra), an appeal from an order of the special term sustaining demurrer to the complaint was dismissed. The new Code defines final and interlocutory judgments, provides the methods of entering both, and distinctly allows and authorizes appeals from each. The “order” sustaining or overruling a demurrer being omitted from the orders appealable, under this new Code, and the reasons given for this omission (Code Civil Procedure, 
      
      Throop's Ed. § 1350, n.), this present appeal cannot be entertained.
    II. We agree with the learned counsel for the defendants that the Code has not substantially altered the rules of equity pleading as to multifariousness, and that the matter rests as in equity before the Code. Reverting, then, to the rules then followed, we say that the whole matter of multifariousness is mainly a matter of discretion in the court, to be applied to the circumstances of each particular case as it transpires (Story Eq. Pl. § 530). The leading case in our own courts on the subject (Brinkerhoff v. Brown, 6 Johns. Ch. 139) will be found most fully to sustain the bill as framed in the present case. And the case of Fellows v. Fellows (4 Cow. 682), in the court of errors, sets forth similar doctrines upon the demurrer to a bill combining quite as extensive a series of matters, all constituting what the law regards as the same transaction like that at bar. Woodworth, J., cites the saying of Lord Redesdale in Whaley v. Dawson (2 Sch. & Lefr. 370), with approval. The case of Getty v. Devlin, reported in the commission of appeals (54 N. Y.), and in court of appeals (69 Id.), is also a strong authority in support of the present bill, and many cases cited in the text-books fully sustain the theory of the present action (Story Eq. Pl. §§ 285, 285 a, 286, 286 a, and cases cited; also 278 a, and §§ 530-535, 539).
   By the Court.—Sedgwick, J.

It is agreed that, under section 1347 of the Code of Civil Procedure, the direction of the court, unless it is an interlocutory judgment, is not appealable. The words of this order are “it is ordered that the demurrers of the defendants, &c., and of the defendant, the Harmony Mills, be, and the same hereby are overruled,” and “it is further ordered and decided that the plaintiffs have judgment against the several defendants as above specified, for costs herein, according to the prayer thereof, unless the several defendants above specified, within twenty days from the entry of this order and notice, pay the costs, &c., and serve their answer.” Under any circumstances, the form of this is imperfect. As it stands, the service of an answer would leave a demurrer upon the record undetermined,, or an implied determination in defendant’s favor. A better form, perhaps, would have been, with leave to the defendants, within; &c., on payment of costs, to withdraw the demurrer and' serve an answer.

Except, perhaps in some cases, not like the present one, an interlocutory judgment on an issue as to the merits is a final determination of part of the issue, which leaves the rest of the issue to be thereafter adjudged. It cannot be a judgment of any kind, if on its face it does not determine some part of the issue. Merely overruling a demurrer is essentially removing an obstacle, which the demurring party has interposed, to the other side proceeding to judgment upon the facts. In and of itself, that does not give the other side a judgment. It leaves him at. liberty to proceed to judgment. Beyond this, an order asserting that the plaintiff have judgment is not a part of the judgment which he may have. The judgment is yet to come ; when it is-entered, it adjudges the existence of certain things, for instance, in a case like this, it would determine that a trust existed, that the trustees took the mortgage made by the defendants ; that the defendants knew the terms of the trust, and if the court so held, for this is said only as illustration, that the defendants cause to be procured the consent in writing, &c. . It would or would not leave some part of the issue undetermined, according to circumstances.

In the present case it is ordered that the plaintiffs have judgment and nothing more. The judgment in whole or in part is not pronounced. Indeed, if it is at all a judgment, it is a final judgment, if it were not for the clause “ unless,” &c. But this clause, unless the defendant serve an answer, goes back of the order that plaintiffs have judgment. If an answer be served, that prevents a judgment being entered. In that case, the order in substance is that the plaintiffs do not enter judgment, but proceed to trial of the issue of fact.

If, however, it should appear that the defendant allowed the twenty days to pass without serving an answer, there would be nothing then but an order overruling the demurrer. Before the defendant is entitled to appeal judgment must be entered, and this judgment will be final or interlocutory, according to its terms, and the contingencies of the facts.

The motion to dismiss appeal is granted, with costs. The order is to be settled upon notice.

Van Vorst, J., concurred.  