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WINTERS V. ETHELL, 132 U. S. 207 (1889)

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U.S. Supreme Court

Winters v. Ethell, 132 U.S. 207 (1889)

Winters v. Ethell

No. 98

Argued and submitted November 12, 1889

Decided November 25, 1889

132 U.S. 207

Syllabus

A complaint in a suit in a district court in Idaho Territory prayed for an injunction restraining the defendant from interfering with the possession of a mining claim which the plaintiff had, by a written agreement, licensed the defendant to work, for a compensation, the agreement also containing a provision for the conveyance of the claim to the defendant on certain terms. The complaint also prayed for an accounting concerning all ore taken from the mine by the defendant and the payment to the plaintiff of the amount due to the plaintiff under the agreement. The defendant filed a cross-complaint praying for a specific performance by the plaintiff of the contract to convey. The district court, by one judgment, granted to the plaintiff the injunction asked, and ordered an accounting before a referee, and dismissed the cross-complaint. On appeal by the defendant, the judgment was affirmed by the supreme court of the territory, and the defendant appealed to this Court.

Held:

(1) The judgment was not final or appealable.

(2) It made no difference that the judgment dismissed the cross-complaint.

(3) The right of the defendant to appeal from the judgment, so far as the cross-complaint is concerned, will be preserved, and time will run against him, as to all parts of the present judgment of the district court only from the time of the entry of a final judgment after a hearing under the accounting.

The case is stated in the opinion.





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