The Russell Lumber Company vs. J. E. Smith and Company, Incorporated

The Russell Lumber Company vs. J. E. Smith and Company, Incorporated. Third Judicial District, Bridgeport, October Term, 1909. Baldwin, C. J., Hall, Prentice, Thayer and Roraback, Js. This court has no jurisdiction over an appeal from the denial of a motion to stay the issue of an execution, such action not being a final judgment;'and therefore such an appeal will be erased from the docket. Argued October 28th decided December 17th, 1909. Action to recover for lumber sold and delivered, brought to and tried by the Superior Court in New Haven County, George W. Wheeler, J.; judgment having been rendered for the plaintiff, the defendant, more than two years thereafter, moved for a stay of execution thereon, from a denial of which by Shumway, J., it appealed. Appeal erased from docket. John O’Neill, for the appellant (defendant). George E. Beers, for the appellee (plaintiff). [MAJORITY — Per Curiam.] Per Curiam. This is a motion, made two years after final judgment had been rendered in the action, asking for a stay of execution therein. The ground of the motion is that the judgment is merged in a judgment obtained by the plaintiff on scire facias against the Waterbury National Bank, who was factorized in this action as the debtor of the defendant. If such be the fact, the defendant has a remedy in the nature of an equitable action or of audita querela. A proceeding in either of these ways would result in a final judgment, from which an appeal is provided by statute. The statute provides for appeals only from final judgments. The present appeal is not from such a judgment. It was therefore unwarranted and improper, and gives to this court no jurisdiction over the case. The appeal is erased from the docket.