before judgment he says that he will not further prosecute his suit as to the whole or a part of his cause of action or as to some or all of the defendants.1 A judgment of retraxit is entered against a plaintiff when after appearance and before judgment he enters upon the record that he withdraws his suit.2 A judgment of nonsuit is entered against plaintiff when he consents that judgment go against him for costs (in which case it is voluntary), or when being called he fails to appear on the trial or gives no evidence upon which a verdict could be found (in which case it is involuntary),3 A judgment of cassetur breve or billa (that the writ or bill be quashed) is a judgment rendered in favor of the party pleading in abatement to a writ or action.4 A contradictory judgment (in Louisiana) is a judgment which has been given after the parties have been heard either in support of their claims or in their defence (as distinguished from a judgment in default).5 A judgment in error is a judgment rendered by a court of error on a record sent up from an inferior court. A judgment pro retorno habendo is a judgment for the return of goods. A judgment quod partitio fiat is the interlocutory judgment in a writ of partition directing partition to be made.8 A judgment quod partitio facto firma et stabilis in perpetuum is a judgment in partition entered after the return of the writ.9 A judgment quod computet is the interlocutory judgment in an action of account compelling defendant to account.10 A judgment misericordia was sometimes given at common law against a party for the unjust vexation occasioned by his action.11 A judgment capiatur was a judgment against defendant who was convicted in a civil action of a wrong committed vi et armis making him liable to arrest and imprisonment until a fine was paid to the king for a breach of the peace implied in his wrongful act.12 De Melioribus Damnis.-Where, in an action against several persons for a joint tort, the jury by mistake sever the damages by giving heavier damages against one defendant than against the 1. Freeman on Judg., § 7. 296; Thomason v. Odum, 31 Ala. 2. Bouv. Law Dict. See also Thoma- 108. son v. Odum, 31 Ala. 108. "A retraxit differs from a nonsuit in this, one is negative and the other positive. The nonsuit is a mere default or neglect of the plaintiff, and therefore he is allowed to bring his suit again upon payment of costs; but a retraxit is an open voluntary renunciation of his claim in court, and by this he forever loses his action." 3 Black. Com. 3. Freeman on Judg., § 7. others, the plaintiff may cure the defect by taking judgment for the greater damages (de melioribus damnis) against that defendant and entering a nolle prosequi against the others.1 A judgment in personam is one given where the proceedings are against the person and are of such a nature as to bind only the parties and their privies in blood and estate.2 A judgment in rem is a judgment against some person or thing upon the status of the person or the nature and condition of the thing equally binding on all persons.3 2. Distinction Between Decrees and Judgments.-Whatever difference between a decree in equity and a judgment at law may eventually survive the modern assimilation of the two systems, the chief original distinction was that the first was pronounced by a court of equity and the second by a court of law. This fact has been referred to under another title,4 and is further explained in the notes.5 3. Final Judgments.-Final judgments and decrees within the meaning of the acts of congress giving the Supreme Court of the United States power to review final judgments and decrees of inferior courts have been treated under another title.6 In like manner what are and what are not final decrees have already been set out." There is thus reserved for treatment here final judgments within the State statutes regulating the review by higher courts of the judgments of inferior courts.& 8 As a general rule, the statutes of the United States, and also of the several States, provide for appeals from final judgments and decrees only of subordinate courts. The same rule obtained at common law.9 A final judgment is one which determines the rights of the parties in the suit or a distinct and definite branch of it, and reserves no further question or direction for future determination,10 1. Rap. & L. Law Dict. 2. See Freeman on Judg. (3rd ed.),§13. 3. See Freeman on Judg. (3rd ed.), §§ 13, 606-612; Bouv. Law Dict., title In rem; 2 Ph. Ev. 5, subtitle In rem, infra, this title. 4. See DECREES, vol 5, p. 371. 5. "The chief differences between decrees in equity and judgments at common law are as follows: The former are pronounced by courts of equity, the latter by courts of law. The former result from an investigation and determination of the rights of the parties, by the means provided and according to the principles recognized in equity jurisprudence; the latter result from an investigation and determination made by the more limited means and more inflexible rules of the common law. The former may be adjusted to all the varieties of interest and of cir cumstance, and may contain such directions as are needed to carry them into effect, both in letter and in spirit; the latter are in an invariable form, general in terms and absolute for plaintiff or defendant; and the former often enforce rights not recognized by the common law, and which, without the aid of courts of equity, could be enforced only by the consciences of men." Freeman on Judgments (3rd ed.), § 9. 6. See FINAL JUDGMENTS, vol. 7, p. 966. 7. See DECREES, vol. 5, p. 373. 8. See also APPEAL, vol. 1, p. 617; ERROR, vol. 6, pp. 813-843; INTERLOCUTORY, vol. 11, p. 427. 9. Samuel v. Judin, 6 East 333; 1 N. R. 43; Mayor v. Gee, 14 M. & W. 470; Scott v. Bennett, 5 L. R., H. L. Cas. 234; Freeman on Judg. (3rd ed.), § 16. 10. See Leese v. Sherwood, 21 Cal. except such as may be necessary to carry it into effect;1 but a judgment may be final though it does not determine the rights of the parties, if it ends the particular suit. An interlocutory judgment is one which does not dispose of the suit, but reserves some further question or direction for future determination.2 As a general rule, a judgment is not considered final which settles part only of several issues of law or fact.3 Generally a judgment which determines the rights of some of the parties to the action is not final within the statutes governing appeals unless it settles the rights of all defendants; but where it settles the rights of some parties whose interests are not at all connected with the others and directs the payment of costs as to them, it is final.5 A judgment in a criminal case is generally not 151; Dowling v. Polack, 18 Cal. 625; Chicago L. Ins. Co. v. Auditor, 100 Ill. 478; Myers 7. Manny, 63 Ill. 211; Hayes v. Caldwell, 5 Gilm. (Ill.) 33; Maysville etc. R. Co. v. Punnett, 15 B. Mon. (Ky.) 47; Stebbins v. Niles, 13 Sm. & M. (Miss.) 307; Ware v. Richardson, 3 Md. 505; s. c., 56 Am. Dec. 762; Smith v. Sahler, 1 Neb. 310; Per kins v. Sierra Nevada etc. Co., 10 Nev. 405; State v. Logan, 1 Nev. 509; Morris v. Morange, 38 N. Y. 172; Feaff v. Hewitt, Ohio St. 511; s. c., 59 Am. Dec. 634; Linn v. Arambould, 55 Tex. 611; Dunlap v. Hunter, 1 Sneed (Tenn.) ΙΟΙ. ed.), § 16; 1. Freeman on Judg. (3rd で。 v. 335; N. Car. University v. State Bank, 92 N. Car. 651; Hicks v. Gooch, 93 N. Car. 112; Welch v. Kinsland, 93 N. Car. 281; Bond v. Marx, 53 Ala. 177; Shirey v. Musgrave, 29 W. Va. 276; Hills v. Als, 27 W. Va. 215. Exceptions. "But owing to particular circumstances and hardships, the courts have refused to dismiss appeals. from some judgments which did not completely dispose of the cases in which they were entered. These judgments. determined matters in controversy and were of such a nature that they could be immediately enforced, and by their enforcement could deprive the party against whom they were entered of all benefits which he might obtain from an . appeal at any subsequent stage of the proceedings." Freeman on Judg. (3rd ed.), § 35; Merrill . Merrill, 92N. Car. 657; Merle v. Andrews, 4 Tex. 200; Stovall 7. Banks, 10 Wall. (U. S.) 583; Forgay v. Conrad, 6 How. (U. S.) 201; Barnard v. Gibson, 7 How. (U. S.) 650. Compare Martin v. Crow, 28 Tex. 614. See also Cannon v. Hemphill, 7 Tex. 184. 2. State Bank v. Roddy, 15 Ark. 401; Bond v. Marx, 53 Ala. 177; Gray v. Palmer, 9 Cal. 616; Dusing v. Nelson, 7 Col. 184; Hunter 7. Hunter, 100 Ill. 519; Tinley v. Martin, So Ky. 463; Lewis v. Outton, 3 B. Mon. (Ky.) 453; Ware v. Richardson, 3 Md. 505; s. c., 56 Am. Dec. 762; Hazlehurst v. Morris, 28 Md. 67; Boteler v. State, 7 Gill & J. (Md.) 109; Cook v. Bay, 4 How. (Miss.) 485; Smith v. Sahler, 1 Neb. 310; Lake v. King, 16 Nev. 215; Johnson 7. Everett, 9 Pai. (N. Y.) 636; Tompkins v. Hyatt, 19 N. Y. 534; Harris . Clark, 4 How. Pr. (N. Y.) 78; Cruger v. Douglass, 2 N. Y. 571; s. c., 4 How. Pr. 215; Chittenden v. Missionary Society, 8 How. Pr. (N. Y.) 327; Goodbread . Wells, 4 Dev. & B. L. (N. Car.) 271; Teaff v. Hewitt, 1 Ohio St. 511; s. c., 59 Am. Dec. 634. 3. Freeman on Judg. (3rd ed.),§§ 20, 34; King v. Stafford, 5 How. Pr. (N. Y.) 30; Bentley v. Jones, 4 How. Pr. (N. Y.) 4. Freeman on Judg. (3rd ed.), § 28;. Peck v. Vandenberg, 30 Cal. 11; Gates v. Salmon, 28 Cal. 320; Hutchinson v. Ayres, 117 Ill. 558; Hoffman etc. Co. v. Haxton etc. Co., 18 Ill. App. 484; Chittenden v. M. E. Church, 8 How. Pr. (N. Y.) 327; Martin 7. Crow, 28 Tex. 614; Wills v. State, 4 Tex. App. 613; Simpson v. Bennett, 42 Tex. 241; Rodrigues v. Trevino, 54 Tex. 198; Delap v. Hunter, 1 Sneed (Tenn.) 101; Harrison v. Farnsworth, 1 Heisk. (Tenn.) 751; Hume 7. Commercial Bank, I Lea (Tenn.) 220; Hunter v. Gardenhire, 10 Lea (Tenn.) 87. 5. Royall v. Johnson, 1 Rand. (Va.), 421. Finality of Judgments.-See APPEAL; DECREES; FINAL JUDGMENT. Change of Venue.—An order granting a change of venue is not final. Juan 7. Ingoldsby, 6 Cal. 439; Vance v. Hogue, 35 Tex. 432; Nounnan v. Aspinwall, 1 Utah 140. Removal.- An order removing a cause from a state to a federal court is interlocutory. Jackson v. Alabama, etc. R. Co., 58 Miss. 648; Jones v. Davenport, 7 Coldw. (Tenn.) 145. Compare Rosenfeld . Condict, 44 Tex. 464. Continuance. An order of continuance is interlocutory. Tinsley v. Tinsley v. Trimble, 35 Tex. 425; Ambrouse . Ambrouse 7. Keller, 22 Gratt. (Va.) 769. On Demurrer.-A judgment that simply sustains or overrules a demurrer is not final. Barclay v. Spragins, So Ala. 357; Cohn v. Hamlet, 44 Ark. 344; Moraga v. Emeric, 4 Cal. 308; Gates 7. Hayner, 22 Fla. 325; Slagle . Bodmer, 58 Ind. 465; Hayes v. Caldwell, 5 Gilm. (Ill.) 33; Gage v. Eich, 56 Ill. 297; Gage 7. Rohrbach, 56 Ill. 262; Phelps 7. Fickes, 63 Ill. 201; Turck v. Soule, 55 Mich. 128; Palmer v. Crane, 8 Mo. 619; Robinson 7. County Court, 32 Mo. 428; National Banking & Ins. Co. v. Knaup, 55 Mo. 154; State v. Justices, 58 Mo. 583; Kirchner v. Wood, 48 Mich. 199; Miller v. Burlington etc. R. Co., 7 Neb. 227; Elwell . Johnson, 74 N. Y. So; Adams v. Fox, 27 N. Y. 640; Paddock v. Springfield etc. Ins. Co., 12 N. Y. 591; Ferris v. Aspinwall, 10 Abb. Pr., N. S. (N. Y.) 137; Smith v. Cornell, 53 N. Y. Super Ct. 234. But judgment entered on demurrer which disposes of the cause, is final. Matter v. Campbell, 71 Ind. 512; Manufacturers' etc. Bank v. Kiersted, 6 Daly (N. Y.) 160. See also Jones v. Craig, 127 U. S. 213. Judgment on demurrer, sustaining a plea in bar, is final. Durkee v. Mayo, i Aik. (Vt.) 129. Judgment for plaintiff on demurrer was held to be interlocutory, where it was necessary to have damages assessed by a jury. Logan v. Jennings, 4 Rawle (Pa.) 355. A judgment sustaining a demurrer and dismissing a case as to some defendants, but not as to others who did not demur, is not final. Owens 7. Mitchell, 33 Tex. 225. An order overruling a demurrer to the whole bill has been held final. Chappell v. Funk, 57 Md. 465; Hecht 7. Colquhoun, 57 Md. 563. An entry of judgment to the effect 12 C. of L.-5 that "final judgment is now here by the court rendered for the said defendants upon the demurrer to the plaintiff's petition heretofore sustained in this court," in a case where after the demurrer was sustained an amended petition had been stricken out by the court on motion and plaintiff had refused to plead further, was held not to be a final judgment. Hawkins v. Massie. 62 Mo. 552. Quashing Writs.-An order overruling a motion to quash a writ of error coram nobis or certiorari is not final. Hersey v. Schaedel, 6 Ill. App. 188; Bridendolph 7. Zeller, 3 Md. 325. A judgment quashing a writ of scire facias upon a forfeited recognizance is interlocutory. State. Vaughan, 14 Ark. 424. Where one defendant filed a plea to which plaintiff replied and afterwards a codefendant moved to quash the original writ of summons, which was done, and judgment "that he go hence" was rendered, it was held not to be a final judgment in favor of defendant pleading. State Bank v. Roddy, 15 Ark. 401. Quashing a return is not a final judgment from which an appeal will lie. Wearen . Smith, 8o Ky. 216. 7. Rule to Show Cause. Where after the rendition of judgment against defendants they obtain a rule requiring plaintiff to show cause why the fees of certain witnesses should not be excluded from costs recovered by plaintiff and this rule is continued to the next term of court for hearing, the judgment is not final. Goodbread . Wells, 4 Dev. & B. L. (N. Car.) 271. An order to show cause, granted as of course, is not appealable. Thompson v. Hazelton, 34 Minn. 12. Dismissal. The dismissal of action is ordinarily a final judgment. Dowling . Polack, 18 Cal. 625; Leese 7. Sherwood, 21 Cal. 151; Zoller v. McDonald, 23 Cal. 136; Bowie v. Kansas City, 51 Mo. 454; Gill v. Jones, 57 Miss. 367; Scriven. Hursh, 39 Mich. 98; Loomis v. Brown. 16 Barb. (N. Y.) 325; Shearman . N. Y. Central Mills, II How. Pr. (N. Y.) 269; Coates v. Coates, 1 Duer (N. Y.) 664: Stoppen, bach 7. Zohrlaut, 21 Wis. 385. The overruling of a motion to dis miss is not a final judgment. Davis v. Yon, 43 Ala. 691. It has been held that the dismissal of an action of replevin is not a final judgment. Branch v. Branch, 5 Fla. 447. 65 The dismissal of a petition of intervention was held final. Stewart v. State, 42 Tex. 242. But the refusal to permit petitioners to intervene was held interlocutory. Coburn v. Smart, 53 Cal. 742; Stich v. Dickinson, 18 Cal. 608; State v. Parish Judge, 27 La. An. 184. An order vacating a previous order of dismissal and reinstating the cause is not final. In re Studdart, 30 Minn. 553. A decree that "the injunction heretofore issued be and the same shall remain in full force until the further determination of this cause" is not final though the court was "of opinion" that the suit should be dismissed. Moss v. Ashbrooks, 15 Ark. 169. An order dismissing part only of a bill is not final. Mayor v. Lamb, 60 Ga. 342. An appeal will not lie from an order of the court below refusing to allow appellants to become parties defendant to a bill in chancery filed against other parties, there being no final decree in the case. Young v. Matthiesen & Hegeler Zinc Co., 105 Ill. 26. Compare Morse v. Stockman, 65 Wis. 36. An order overruling a motion to dismiss for want of jurisdiction is a final order from which an appeal lies. Curran v. Excelsior Coal Co., 63 Iowa 94. An entry in form thus, "the court having heard the same, this motion was granted and the action dismissed at plaintiff's costs," is not deemed a final judgment. Stevens v. Solid Muldoon Printing Co., 7 Colo. 86. Vacating Judgments.-An order setting aside a judgment by default and permitting the party to answer is interlocutory. McCulloch v. Dodge, 8 Kan. 476; Brown v. Edgerton, 14 Neb. 453. See also Kermeyer v. Kansas etc. R. Co., 18 Kan. 215; Prentis v. Rice, 2 Dougl. (Mich.) 297; Owen v. Going, 7 Colo. 83. An order refusing to set aside a decree was held final. Michigan Ins. Co. v. Whittemore, 12 Mich. 311; Steel v. Haynes, 20 Neb. 316. But an order refusing to set aside a former order granting a new trial is interlocutory. Hatchett v. Milner, 44 Ala. 224. A judgment in a proceeding to review a former judgment was held to be final. Brown v. Keyser, 53 Ind. 83. An order vacating a previous order dismissing proceedings in insolvency, reinstating the petition, and fixing a day for a hearing, is not a final order A judgment in an action to vacate or annul the judgment of another court is final. Belt v. Davis, 1 Cal. 135; McCall v. Hitchcock, 7 Bush (Ky.) 615. An order setting aside a decree confirming a judicial sale and ordering a resale is not final. Kingwood Bank v. Jarvis, 26 W. Va. 785. Judgments and decrees setting aside former judgments and decrees, but ordering no new trial or further action, have been held final. Tabor v. Lorance, 53 Ala. 543; Bruce v. Strickland, 47 Ala. 192; Ex parte Morris, 44 Ala. 361. · Compare Higgins v. Brown, 5 Colo. 345; Walker . Oliver, 63 Ill. 199; Spaulding v. Thompson, 12 Ind. 477; Wylie v. Johnston, 29 Md. 298. で。 Judgments or orders granting new trials are interlocutory. Lawson v. Moore, 44 Ala. 274; Ex parte Sims, 44 Ala. 248; Broyles v. Maddox, 43 Ala. 357; White 7. Harvey, 23 Ind. 55; House v. Wright, 22 Ind. 383; Melcher v. Freudenburg, 18 Ind. 180; McDonough v. Nicholson, 46 Mo. 35; Byers v. Butterfield, 33 Mo. 376; Artman v. West Point Mfg. Co., 16 Neb. 572; Houston v. Starr, 12 Tex. 424; Stewart v. Jones, 9 Tex. 469. An order setting aside a verdict on the issue of devisavit vel non against the validity of a will and directing a new trial is not a final order. Tucker v. Sandridge, S2 Va. 532. Reversal. A judgment of an appellate court reversing the judgment of an inferior court and remanding the case for further proceedings is not final. Smith v. Clayton, 25 Ark. 331; Rogers v. Traver, 115 Ill. 113; Ball v. Schaffer, 112 Ill. 341; Phelps v. Dolan, 75 Ill. 90; Wright . Smith, 76 Ill. 216; Buck v. Hamilton Buck. Hamilton Co., 99 Ill. 507; Helm v. Short, 7 Bush (Ky) 623; Mutual Life Ins. Co. v. Anthony, 105 N. Y. 57; Bolles v. Stockman, 42 O. St. 445. Compare Tilford v. Ramsey, 43 Mo. 410; Strouse v. Drennan, 41 Mo. 289; Englewood etc. R. v. Chicago etc. R., 117 Ill. 611 A decree affirmed in part and reversed in part, without any direction to the court below. is not a final decree from which an appeal lies. International Bank v. Jenkins, 109 Ill. 219. Costs. A judgment for costs merely is interlocutory. Evans v. Russell, 61 Mo. 37; Conn. 7. Ferree, 60 Mo. 17; Moran v. Plankinton, 53 Mo. 243; Couch v. Fisher, 49 Mo. 371; Zahud v. |