
    WALTER H. SMITH vs. JOHN F. MAY.
    Equity Practice; Appeaeable Orders.
    An appeal does not lie from an order overruling a motion to re-instate an action which the plaintiff has himself dismissed.
    At Eaw.
    No. 21,741.
    Decided December 5, 1890.
    The Chief Justice and Justices James and Montgomery sitting.
    Motion by defendant to dismiss an appeal.
    
      Granted.
    
    The Facts are stated in the opinion.
    Mr. S. S. HeniclE for plaintiff.
    Mr. Enoch Totten for defendant.
   Mr. Justice Montgomery

delivered the opinion of the Court:

While this cause was pending below, the plaintiff becoming satisfied that he could not recover, “in person appeared in Court and dismissed the case,” upon which judgment was then and there entered, in substance that the defendant go without day and that he recover of and from the plaintiff his costs to be taxed.

A few days later and at the same term, plaintiff having changed his mind about his right to recover, filed a motion asking for an order “reinstating the case.”

This motion was heard and denied by the justice then holding the Circuit Court and from' such denial the plaintiff attempts an appeal.

On the argument it was said that the motion was denied, because the justice was of opinion that he had no authority to grant it.

However, we have no judicial information upon the subject, and we only know that the motion was denied.

The first question which confronts us is as to the right of appeal from an order of this character — an order denying plaintiff’s motion to reinstate.

It hardly need be said that the right of appeal here exists only when conferred by statute or rule of Court. The statute, Section 772 of the “Revised Statutes relating to the District of Columbia,” provides that “any party aggrieved by any order, judgment or decree, made or pronounced, at any special term, may, if the same involve the merits of the action, appeal therefrom to the General Term,” and there is no other statute and no rule of Court affecting this question. Now, does this order of denial involve the “merits of the action ? ’ ’

We think that it plainly does not. We are therefore not required to determine whether the order sought to be appealed from was a “discretionary” one, or when or how such an order may, if ever, be reviewed.

We are all of opinion that no authority exists for an appeal in such a case as this, and therefore we can neither affirm nor' reverse the action of the Court below.

The appeal must be dismissed.  