In this case, if the remaining defendant William R. Thorley obtains a judgment favorable to him on the question as to whether there has been any breach of the contract, the judgment dismissing the cause as to Thomas A. Thorley would not be prejudicial. Consequently, as long as the present status of the plaintiff can be affected by what may happen in the cause between him and William R. Thorley, the judgment of dismissal in favor of Thomas A. Thorley cannot be final as to the plaintiff. This is not the case where a dismissal of the cause as to one party cannot in any manner be affected by the result of the case as to the remaining parties as mentioned in the second exception contained in the excerpt from American Jurisprudence cited in the opinion of the court.
An examination of the case of North Point ConsolidatedIrrigation Co. v. Utah Salt Lake Canal Co., 14 Utah 155,46 P. 824, leads me to believe that the reasoning therein may *Page 390 be seriously questioned. I do not, by my concurrence in this case, want to be foreclosed from a re-examination of the question as to whether the Legislature or this court by rule may not give a right of appeal from certain interlocutory orders. My present inclination is to think that section 9, article 8, of the State Constitution, intended to save a litigant at all events a right of appeal from final judgments, and was a prohibition against the Legislature denying such right. I think it may be that the word "only" should not have been injected into this constitutional provision by this court.
As to the case of Benson v. Rozzelle, 85 Utah 582,39 P.2d 1113, I have already stated in the case of Atwood v. Cox,Judge, 88 Utah 437, 55 P.2d 377, that I think it was wrongly decided. I also think the case of Oldroyd v. McCrea, 65 Utah 142,235 P. 580, 40 A.L.R. 230, mentioned in the court's opinion, presents an excellent illustration of why the door should be left open for the Legislature to provide for appeals from certain interlocutory orders. In the case of Atwood v. Cox, supra, I stated that the action of the trial judge in the McCrea Case in regard to which a writ of prohibition was sued out was really not one beyond his jurisdiction but error only; yet the result of leaving the correction of such error to appeal would be locking the stable door after the horse was stolen. Owing to the necessity of arresting the trial court presently in order that grievous, irremedial injury would not result, this court held prohibition was proper, which required that it construe what was really error as being jurisdictional.
Subject to these comments, I concur. *Page 391