The order of the supreme court denying the motion to set aside the judgment, is not an order from which a right to appeal is given under the code. This appeal was brought under the code of 1848, and it gives no appeal in cases of this kind.
I. The judgment was perfected in June, 1847. The code proper only applies to suits commenced after the first day of July, 1848. The supplemental act only makes certain provisions of the code, and among others, the right of appeal, applicable tofuture proceedings in pending suits. This court has repeatedly held, that when judgment had been perfected before the code took effect, the action could not be deemed pending within its provisions. (1 Comst. 426, 423 and 608.) The motion, therefore, was not a future proceeding in a pending suit.
II. The supplemental act restricts the right of appeal to judgments, decrees and final orders. Final orders in this act refer either to final orders in special proceedings in the nature of judgments, final decrees or final orders upon summary application after judgment. In the latter case, this court has held that it refers to some proceeding based upon the judgment or decree, and assuming its validity as a proceeding against the judgment debtor under section 247 or an application of a judgment creditor for the surplus on a foreclosure, and cases of that kind. (1 Comst. 187.) *Page 344
III. The 457th section of the code of 1849, does not affect the case. That refers to judgments, orders and decrees made before the first day of July, 1848. It also restricts the right of appeal to cases when a right of review existed before the code went into operation. No such right in a case like this existed before the code.
The appeal should therefore be dismissed.
Appeal dismissed.