
    Benjamin Lamphear versus Henry A. Lamprey.
    Appeals from the Court of Common Pleas must be from the final judgments of that court, except in the case of an interlocutory judgment in abatement, account, or partition, which are specially provided for by statute.
    But if the court below arrest the judgment, or send the parties out of court with out giving any judgment, in cases where an appeal lies, the aggrieved party may claim an appeal, and this Court will sustain it, although the court below disallow it.
    At the Court of Common Pleas, this action was permitted to be entered on the 27th day of the term, after which Charles Smith, who was the defendant’s bail in this action, comes into Court, and for himself and his principal moves the Court that the action may be dismissed, or the plaintiff become nonsuit; suggesting, as a reason, that, since the beginning of the term, the defendant has left the state, although he was here, and ready to be surrendered, on the first day of the term, if the action had been then entered, as by law it ought to have been, and as it would have been, but for the negligence of the returning officer; which reason, the said Smith says, is not sufficient in law to empower the Court to cause said action to be entered.
    The Court below refused the motion, from which refusal, as from a judgment, the said Smith, for the defendant, claimed an appeal to this Court, which was disallowed by the court below.
    [ * 108 ] * And now it is moved, in behalf of the defendant, that the Court here will sustain the appeal, which was thus disallowed by the Court of Common Pleas.
    
      
      L. Richardson for the plaintiff.
    
      Selfridge for the defendant.
   Parsons, C. J.

We are all of opinion that the appeal cannot be sustained. By statute, a party aggrieved at any judgment of the Common Pleas may appeal to this Court. The judgment is to be understood to be the final decision of the Court, except in interlocutory judgments in abatement, account, or partition, which are specially provided for. We say final decisions, for if the Court arrest the judgment, or send the parties out of Court without giving any judgment, — from such determination of the cause by the Court, in cases where an appeal lies, the aggrieved party may claim an appeal; and if it be disallowed, this Court will sustain it; otherwise there would be a total failure of justice. In the present case, there was no determination of the cause, and the party putting his gravamen on the record, might, upon an appeal from the final determination of his cause, have obtained relief here, if it ap peared that he had been injured. 
      
      
        Ante, vol ii. 141, Bemis vs. Faxon
      
     