Goldberg v. . Utley

I think this order is not appealable to this court. First. We have no evidence that the motion was not decided upon the merits, and if so, it was discretionary with the court below. The ground of the decision is not stated in the order, and the memorandum is not evidence. Second. But if the memorandum is regarded the motion involved only the question whether there was a waiver, which like laches is never appealable, but is regarded as discretionary, and the construction of the order of the judge is of the same character. If the question was before us it seems to me clear that the right to…