
    NOVEMBER TERM, 1844.
    
      Aaron Heckingbottom v. Daniel A. Shell and Ransom Bunckley.
    The Circuit Court rendered a decreé overruling a demurrer to a bill filed on the chancery side thereof; the clerk of the Circuit Court, on petition, issued a writ of error/and a motion is made in this Court to dismiss the cause, because the clerk had no authority to issue a writ of error in' such a case ; held, that the motion be sustained, and that this Court has no jurisdiction of the cause.
    A writ of error lies only from final judgment, except in cases specially provided.
    
      Error from the Circuit Court of Franklin county.
    Daniel A. Shell and Ransom Buncldey filed a bill in the Circuit Court of Franklin county, against Aaron Heckingbottom. The defendant demurred to the bill, and the Court overruled his demurrer. To the decree of the Court overruling the demurrer, the clerk of the Circuit Court, upon the petition of the defendant, issued a writ of error, and the defendants in error now moved to dismiss the cause, 1st, because there is no judgment of the Circuit Court stated in the record, the only decision being an order overruling a demurrer to the bill; and 2d, because the clerk of the Circuit Court was not authorized to issue a writ of error in such a case.
    
      Montgomery and Boyd, for the motion.
    
      H. Cassedy, contra.
    This case comes into Court on writ of error from the Chancery side of the Circuit Court of Franklin county. The question now presented for the consideration of the Court is, Will a writ of error lie from a judgment or decree of the Circuit Judge as Chancellor, overruling a demurrer to a bill ?
    Prior to the passage of the Act of 1837, giving to the clerks of Circuit Courts the power of issuing writsmi error, there was a manifest difference between an appeal and writ of error. An appeal could be taken from “ any specified sentence, judgment, or decree of any Court, whether in law or equity.” How. & Hutch, p. 482, sec. 10.
    But if a party wished to take advantage of error, committed by the Court, and neglected to appeal, he was not entitled to his writ of error by a mere application for such writ, as he was to an appeal, but'had first to submit the record to one of the Judges of the High Court of Errors and Appeals, and if such Judge should be of the opinion, from such inspection of the record, that there was good cause to reconsider the judgment, sentence, or decree, then, and only then, would a writ of error be allowed. How. & Hutch. 538, sec. 39. Another difference, existing previous to the time referred to, was, that an appeal could be taken from any specified judgment, sentence, or decree of the Circuit Court. But a writ of errror could be prosecuted from a final judgment or decree. The only purpose, then, for which the acts of 1830 and 1837 could have been enacted, must have been to extend the efficacy of the writ of error, to embrace all cases from which an appeal could have been taken ; to make the writ of error answer all the purposes of an appeal. It was declared to be a writ of right, and demandable upon any judgment or decree. How. & Hutch, p. 540, s. 47 ; p. 541, sec. 50. This being granted, it becomes necessary to inquire if an appeal could have been taken from a judgment similar to the one under examination. The decision of this Court in the case of Green, Appellant, v. Tunstell, determines the construction to be placed on the words “judgment or decree.” The Court in this case, in 5 How. Rep. p. 649, says, “ the language of the Act is broad enough to include every decree or order of the Court, and therefore the appeal results as a clear and well-defined right of the party who may be injured by it.” And the very state of facts, in the present case, occurred in the case of Montgomery, et als. AdmPr v. Morris, et ais., 1 How. 507, which originated in the Chancery Court; there the Court is unequivocally of the opinion, that an appeal will lie upon a decision overruling a demurrer to a bill. An appeal, then, would lie in the present case before the Court. Hence, if the statute , of 1837 was intended to meet all cases in which appeals would lie, and extend to them the right of removal to this Court by writ of erroi, it follows that a writ of error will lie in this- case, and the motion to dismiss must be overruled.
   Mr. Justice Thacher

delivered the opinion of the Court.

This is a motion to dismiss this cause, because there is no judgment of the Court stated in the record, and because the clerk of the Circuit Court was not authorized to issue a writ of error in such case.

Upon a petition to him, therefore, a writ of error was issued by the clerk of the Circuit Court of Franklin county, upon "a decree of said Circuit Court, overruling a demurrer to a bill filed in said Court addressed to its equity jurisdiction.

By the statute, H. & H. 541, s. 50, making a writ of error issuable by the clerk of any Court in this State to any judgment or decree, upon the proper application, a change was made so far in the source from which such writ could issue, but no alteration was intended in the kind of judgments and decrees to which a writ of error would’previously lie by law. Green v. The Estate of Whiting, 1 Sme. & Marsh. R. 579. Bylaw (How. & Hutch. 538, s. 40), no writ of error is allowed from any judgment of the Circuit Court until final judgment in such Court. The statute, H..& H. 513, s. 37, extends the privilege of this writ in the Superior Court of Chancery, to cases of interlocutory orders or decrees, when thereby money is required to be paid, or the possession or title of property to be changed, or when the Court or Chancellor shall think such appeal proper in order to settle the principles of the cause, or to avoid expense and delay, or, when, upon the refusal of the Court or Chancellor, upon petition, the Supreme Court, or any Judge thereof in vacation, for any error therein, may grant an appeal from such order or decree. An appeal or writ of error lies only from a final decree in chancery, with the exceptions just enumerated. Wright v. Petrie, 1 Sme. & Marsh. Ch. R. 326. In the present case, neither money is required to be paid, nor the possession or title of property changed by the decree on the demurrer. Whether, then, we consider this case as controlled by the law regulating writs of error to the Circuit or to the Chancery Court, in neither point of view can this Court take jurisdiction of it in its present stage. Since the writ of error in this case was sued out, the law regulating appeals from decrees overruling demurrers in Chancery has been altered. Laws of Miss. 1844, ch. 13, s. 3.

The motion is therefore sustained.  