Drew v. Rearick — 3 Thomp. & Cook 337

Majority

p. 337

Drew v. Rearick et al., appellants.

Headnote

Appeal must be based on a judgment.

The findings of a judge before whom an action is tried constitute no basis for an appeal. A judgment must be entered upon them, before they can be reviewed by an appellate court.

“ Appeal from a judgment, decision or order entered * * * in favor of the plaintiff,” by defendant David Rearick.

This action was one of revivor, brought by Robert Drew against David Rearick and others, and was tried before Mr. Justice Barker without a jury, at the Genesee special term, March, 1873. The said justice found, among other things, that the plaintiff was entitled to a judgment of revivor against the defendant, directed further proceedings to be had, and appointed a referee to take proofs and report concerning certain payments alleged to have been made by the defendant. But no judgment was entered upon the findings. The defendant excepted to the “decision” of the judge as to certain findings of fact, and to “each and every finding of fact in said decision contained; ” also to “ the findings or conclusions of law in said decision contained.” But no case was made, or exceptions settled. The defendant Rearick appealed from a “judgment, decision or order” entered herein, on the oth of May, 1873.

p. 338

O. O. Cottle, for appellant.

William H. Gurney, for respondent.

The appeal in this case has brought up nothing for review. The findings of the justice constitute no basis for an appeal. A judgment must be entered hpon them before they can become the subject of review by an appellate court.

The appellant might have moved for a new trial upon a case or exceptions, pursuant to section 268 of the Code, but he has not done that; No case has been made, nor exceptions settled. Moreover, the important exceptions are to findings of fact. These can be determined only by a comparison of them with the evidence given upon the trial. That is not before us. The proceeding is wholly irregular. The appeal must, therefore, be dismissed, with costs.

Appeal dismissed.