The order made herein is not appealable to this court. This was an application to the discretion of the court, to allow the institution of a peculiar action. The court exercised its discretion by denying the motion — not affirming that such an action could not be sustained, but, as matter of propriety or expediency, refusing to authorize its institution. Upon that ground, it is not appealable. *Page 361
The counsel have sought to avoid this difficulty by agreeing, as they allege, that the matter shall be determined as if the respondents had demurred to the complaint for want of equity, and the court had sustained the demurrer. This does not aid the petitioner, because it appears that the suit has never in fact been instituted. No defendants are in court, and no such decision has in fact been made. There has been "no actual determination," as the Code requires, of any such question by the Supreme Court. Therefore, this court has no jurisdiction to review the decision of the court below as to the order there made; and we have no disposition to determine the rights of third parties upon a given case, when those parties do not appear in the cause, and cannot be heard as to its merits.
The appeal is dismissed.