
    No. XXII.
    Isabella M. Andrews v. Edmund Andrews.
    (See .)
    
      Appeal from Brazoria County.
    
    
      
      .—Andrews v. Andrews, p. 427.
      An appeal does not lie from an interlocutory decree or judgment nor from a judgment that does not settle all the issues as to all of the parties. Soy v. McMullen, Dal., 363; Robinson v. Bailleul, 2 T., 160; Ewing v. Kin-nard, 2 T., 163; Gross v. McClaran, 8 T., 341; Hicks v. Gray, 25 T., 82; Martin v. Crow, 28 T., 613; Simpson v. Bennett, 42 T., 241; Taylor v. Fore, 42 T., 256; Rodrigues v. Trevino, 54 T., 198; Linn v. Arambould, 55 T., 611; Whitaker v. Gee, 61 T., 217; Bradford v. Taylor, 64 T., 169; Wootters v. Kauffman, 67 T., 488; Lumber Co. v. Williams, 71 T., 444; Mignon v. Brinson, 74 T., 18; M. P. Ry. v. Scott, 78 T., 360; Darnell v. Lyon, 85 T., 455, 465; Land Co. v. Winter, 93 T., 560; R. R. Commission v. Weld & Neville, 95 T., 278 (overruling R. R. Commission v. Weld & Neville T. C. A., U. R. C., 1902); Mills v. Paul, 1 T. C. A., 419; Mills v. Paul, 4 T. C. A., 503; State National Bank v. Waxahachie National Bank, 14 T. C. A., 143; Davis v. Martin, 15 T. C. A., 62; Walker v. Mears, 28 T. C. A., 210; Day v. Bellinger, 1 App. C., see. 24; Giersa v. Yocum, 1 App. C., sec. 310; Stephenson v. Tennant, 1 App. C., sec. 543; Wheeler v. Davis, 3 App. C., sec. 13; Carswell v. Crowther, 4 App. C., sec. 153; White v. Smith, 4 App. C., sec. 225; Wadley v. Johnson, 2 U. C., 739; Masterson v. Williams (T. Sup.), U. R. C., 1889; Prank v. Tatum (T. C. A.), U. R. C., 1892; Burch v. Burch (T. C. A.), U. R. C., 1894; Burrows v. Cox (T. C. A.), U. R. C., 1896; Davis v. Martin (T. C. A.), U. R. C., 1896. In such cases, appellate courts will dismiss the appeal on its own motion. Messner v. Lewis, 17 T., 519; Holek v. Varona, 63 T., 65. When one of the defendants dies before trial, it will be presumed in favor of finality that the case was dismissed as to him. Smith v. Wilson, 18 T. C. A., 24. Appellate court may revise an interlocutory order of lower court refusing to proceed with the cause, and correct errors by mandamus. Kleiber v. McManus, 66 T., 48; Schultze v. McLeary, 73 T., 92; Grigsby v. Bowles, 79 T., 138; Fannin County v. High-tower, 9 T. C. A., 293; Schintz v. Morris, 13 T. C. A., 580. After final judgment, interlocutory may be revised on appeal. Gross v. McClaran, 8 T., 341; Stewart v. Jones, 9 T., 469; Stewart v. State, 42 T., 242; Holek v. Varona, 63 T., 65; O’Neal v. Bank, 64 T., 644; Fort Worth Ry. v. Rosedale Ry., 68 T., 163. Act of November 1, 1871 (Gammel’s Laws of Texas, vol. 7, p. 17), authorizing appeals from interlocutory judgments, held void. Ward v. Ward, 37 T., 389; City of Paris v. Mason, 37 T., 447; Dial v. Collins, 40 T., 367. Nor from an order overruling motion for new trial, nor until after final conviction. Shannon v. State, 7 T., 492; Lawrence v. State, 14 T., 432; Burrell v. State, 16 T., 147; O’Connell v. State, 18 T., 343; Calvin v. State, 23 T., 577; Nathan v. State, 28 T„ 326; Dooly v. State, 33 T., 712; Murray v. State, 35 T., 472; Fulcher v. State, 38 T., 505 (overruling Nelson v. State, 32 T., 71; Hoppe v. State, 32 T., 388); Mayfield v. State, 40 T., 289; Anschincks v. State, 43 T., 587; Young v. State, 1 T. App., 65; Smith v. State, 1 T. App., 408; Butler v. State, 1 T. App., 638; Choate v. State, 2 T. App., 302; Butler v. State, 2 T. App., 529; Robinson v. State, 3 T. App., 47; Labiaite v. State, 4 T. App., 169; Pennington v. State, 11 T. App., 281; Darnell v. State, 24 T. App., 6. In the following instances, judgments are not final and can not be appealed from: (a) Only for costs. Hanks v. Thompson, 5 T., 6; Warren v. Shuman, 5 T., 441; Scott v. Benton, 6 T., 322; Hancock v. Metz, 7 T., 177; Bradshaw v. Davis, 8 T., 344; Fitzgerald v. Fitzgerald, 21 T., 415; Martin v. Wade, 22 T., 224; Holt v. Wood, 23 T„ 474; Green v. Banks, 24 T„ 522; Neyland v. White, 25 T., 319; Patterson v. Hall, 30 T., 464; I. & G. N. Ry Co. v. Smith County, 58 T., 74; Eastham v. Sallis, 60 T., 576; American, etc., Co. v. City of Crockett (T. C. A.), U. R. C., 1899. (b) Overruling motion to quash writs of certiorari and attachment. Messner v. Lewis, 17 T., 519; Hamman v. Lewis, 34 T., 474; Holek v. VUrona, 63 T., 65. (c) Quashing writ of sequestration. Little v. Morris, 10 T., 263. (d) Quashing indictment. State v. Paschal, 22 T., 584; State v. Thornton, 32 T., 104. (e) Order granting change of venue and order remanding case to court granting it. Wygall v. Treasurer, 33 T., 328; Vance v. Hogue, 35 T., 432. (f) Refusal to enter final judgment on verdict. Lane v. Ellinger, 32 T., 369. (g) Order of justice of peace dismissing suit for want of prosecution. Morgan v. Johnson, 4 T., 117. (h) Order dismissing petition of intervention. Stewart v. State, 42 T., 242. (i) Order granting motion to remove cause to Federal Court. Appeal lies from refusal of motion. Rosenfield v. Condict, 44 T.. 464; Durham v. Southern L. I. CCT., 46 T., 182; Walker v. Howard, 10 T. C. a!,’ 611. (j) Judgment against sureties alone on bail bond, and refusal of judgment on. Moore v. Schooner Anna Maria, 11 T., 655; Cox v. State, 34 T. Cr., 94. (k) Order allowing continuance. Dow v. Hotchkiss, 2 T„ 471; Tinsley v. Trimble, 35 T„ 425; Taylor v. Fore, 42 T., 256. (1) Granting new trial. Stewart v. Jones, 9 T., 469; Huston v. Starr, 12 T., 424; Goss v. McClaran, 17 T., 107; Dial v. Collins, 40 T„ 367; Long v. Garnett, 45 T., 400; Morehead v. I. & G. N. Ry. Co., 46 T., 178; G. C. & S. F. Ry. Co. v. James. 73 T., 12; Hamilton v. Prescott, 73 T., 665; Schintz v. Morris, 13 T. C. A., 580; Hume v. Schintz, 16 T. C. A., 512; Lay v. Bellinger, 1 App. C., sec. 23. (m) Setting aside order discharging guardian. Lehman v. Gajusky, 76 Texas, 566. But may appeal from denial of motion to set aside appointment. Arthur v. Read, 26 T. C. A., 574. Adoption of the common law by the Act of January 20, 1840 (Gammel’s Laws of Texas, vol. 2, p. 177), brought with it the writ of error. Bailey v. Haddy, Dal., 376; Moore v. Harris, 1 T., 36. With us it is not the Institution of a new suit but only a mode of appeal. Creek v. Rogers, 1 T., 440; Smith v. Gerlach, 2 T., 424; Luckett v. Townsend, 3 T., 119; Lacey v. Ashe, 21 T., 394; Rodgers v. Alexander, 35 T., 116; Hart v. Mills, 38 T., 513; Magee v. Chadoin, 44 T., 488; Harle v. Langdon, 60 T., 555; Moore v. Moore, 67 T., 293; T. T. Ry. Co. v. Jackson, 85 T., 605; G. H. & W. Ry. Co. v. Lacy, 7 T. C. A., 63; Hart v. State, 13 T. App., 555.
    
   HANSFORD, Justice.

The transcript of the record from the court below (Brazoria) exhibits the following facts: At the fall term of the District Court of Brazoria County, Isabella M. Andrews commenced her suit against her husband, Edmund Andrews, praying to be divorced a vinculo matrimonii, and also praying for alimony pendente lite. That part of the petition of the plaintiff which prays for alimony pendente lite was granted at the said term of the court, and it was ordered, adjudged and decreed by the court that Edmund Andrews, the husband of defendant, pay to the attorney of record of Isabella, tDe sum of $500, and that on the first day of January, 1840, he pay the further sum, etc., during the pendency of the suit for divorce. The sheriff of Brazoria County made his return upon this order, or decree for alimony pendente lite, on the first day of October, 1840, by which it appears that the defendant refused to pay the several sums as ordered and decreed by the district court, and also refused to point out any property to be sold by the sheriff to be applied in conformity with the order or decree of the court.

At the October term, 1840, of the district court for said county, a motion was made by the counsel of Isabella for an attachment against the body of Edward Andrews for contempt, and to compel the performance of said decree for alimony pendente lite, which motion was overruled and refused, and to this decision the counsel for Isabella Andrews excepted and appealed to this court.

Whether the Supreme Court can entertain jurisdiction of this cause is, we think, the only question presented now for our consideration. As the decree was for alimony pendente lite, and consequently interlocutory, it would be manifestly incongruous and unseemly, to say the least of it, for the Supreme Court to entertain jurisdiction of and adjudicate upon the interlocutory decrees of an inferior court, while the substantive or original action upon which such decree is founded shall still be pending in the court below.

In Metcalf’s case, 11 Coke, 38, it was decided that a writ of error would not lie in a judgment quod computet, because it was not a final decision; and it seems to be a rule of law, as well settled as any other rule, that a writ of error will lie only in cases where the judgment is technically ideo consideration est. Field, a writer of the greatest accuracy and of high celebrity, states the rue in the words of Coke, that there must be a final judgment, or an award in the nature of a judgment, or else a writ of error will not lie. 2 Tidd, 1062. These expressions are broad and it must be admitted aTe clearly opposed to the idea of a superior court entertaining jurisdiction and trying questions of mere interlocutory proceedings of inferior tribunals. Again, “A writ of error,” says Lord Coke, “lieth when a men is grieved by an error in the foundation, proceeding, judgment or execution; but without a judgment, or an award in the nature of a judgment, no writ of error doth lie, for the words of the writ are ⅛ judicium redditum sit/ and that judgment must be regularly given by judges of record.” Coke upon Littleton, p. 288. And we hear Lord Holt thus speak in delivering his opinion in the case of Grenwett v. Burwell, 1 Salkeld: “A writ of error will not lie upon a conviction and imprisonment for contempt.” And we hold the converse to be equally true and based upon the soundest logic, that if a writ of error will not lie upon a conviction and imprisonment for contempt, it can not lie for the bare refusal of a court to punish for contempt. This’would be too great an absurdity for any man of common understanding to support.

We shall quote but one other authority and then rest this case upon the general principles of the common law to support and confirm our conclusions. Chancellor Kent says: “A writ of error will not lie upon an interlocutory judgment in an action of account, because it is an award, as that an assize should be taken, or a writ of inquiry issued, or a partition be made. It is not a final and definitive judgment in a cause; and error only lies on a judgment in which all the matter in the original cause of action is determined. It would produce infinite vexation to the courts and oppression to suitors, if. error lay on any other than final judgment upon the merit of the cause.”

The same doctrine in relation to the writ of error applies with equal force to appeals. Under our judicial system, an appeal is a concurrent mode with a writ of error in removing a cause from an inferior to a superior tribunal, a mode pointed out by the Constitution. And it is very certain that the same reasons why a writ of error will not lie, until a final determination of a cause in the court below, apply with equal if not with greater force to an appeal. And our own statute is explicit on this subject. In the third section of the act creating the Supreme Court, we have the following language: “And the said Supreme Court shall have jurisdiction over and hear and determine all manner of pleas, plaints, motions and controversies, civil and criminal, which may be brought before it by appeal, or other legal process, from any other court in this Republic, which may be cognizable in said Supreme Court, according to the Constitution and laws; provided that no appeal shall be granted, nor shall any cause be removed into the Supreme Court, in any manner whatever, until after final judgment or decree in the court below, except in cases expressly provided for by law.” The meaning of the proviso in this section surely can not be mistaken, and in the case under consideration the motion was incidental to a decree, which decree was itself pendente lite, or it was incidental to another action. It would create intricate confusion in judicial proceedings and greatly oppress suitors if such a practice were to prevail. Reason forbids it. The whole tenor of the common law is against it, and our statutes forbid it. It is then our opinion that this court can not entertain jurisdiction of this cause, and it is accordingly dismissed.

Dismissed.

Judges Hemphill, Scurry, Baylor and Terrell say: “We concur in the result, but not in the entire opinion.”  