Arnold v. Sinclair

11 Mont. 556 | Mont. | 1892

De Witt, J.

There is an appeal from the judgment and an appeal from the order denying the motion for a new trial. Respondent contends that the judgment is not a final one, hence that appeal must be dismissed; and again, that if the judgment is not final, the motion for a new trial was premature, and hence that appeal must be dismissed.

We will inquire as to the first proposition. Was the judgment final, and so appealable; or was it an interlocutory order, and not appealable? Under the statute, an appeal can be taken only from a final judgment, and from certain defined orders. (§§ 421, 444, Code Civ. Proc.) Whether a judgment is final or not is sometimes a matter difficult of determination. Mr. Black, in his work on Judgments (§ 41), introduces his discussion of this subject with these words: “In drawing the distinction between final and interlocutory adjudications, the greatest difficulty has been experienced in the ease of decrees in equity; the confusion arising principally from the peculiar nature of the. decisions, and the wide range of means which chancery possesses both for informing the mind of the judge and for acting upon the parties concerned. Many tests of finality have ' been proposed,” etc. The author cites from Kelley v. Stanbery, 13 Ohio, 408, commending the rule as laid down in that case as follows: “The confusion has sprung up from failing to observe the distinction between facts and things to be ascertained preparatory to final decree, and facts and things to be ascertained in execution of final decree. Because a final decree might direct that certain facts should be ascertained in execution of such decree, it will not make it interlocutory; nor, .on the other hand, because the decree finds the general equities of the cause, and reference is had to a master to ascertain facts preparatory to final disposition, will it be regarded as final.”

In all the many cases that we have examined we find the general tendency to be as laid down in the Ohio case — that if the matters and things to be ascertained after the entry of the judgment are for the purpose of carrying that judgment into execution, then such judgment is final. As is said in Freeman on Judgments (§ 36): “If, after a decree has been entered, no further questions can come before the court except such as are necessary to be determined in carrying the decree into effect, the decree is final; otherwise it is interlocutory.”

We have very carefully examined the cases cited by respondent in his brief on the motion. We have also examined the following cases in New York: Swarthout v. Curtis, 4 N. Y. 415; Griffin v. Cranston, 5 Bosw. 658; Lawrence v. Farmers’ L. & T. Co. 6 Duer, 689; Prentiss v. Machado, 2 Rob. (N. Y.) 660; Ives v. Miller, 19 Barb. 196; Lawrence v. Fowler, 20 How. Pr. 407; Chittenden v. Missionary Society, 8 How. Pr. 327; Clark v. Brooks, 2 Abb. Pr. N. S. 385; Tompkins v. Hyatt, 19 N. Y. 534.

We are fully aware of the modern tendency to allow but one appeal in a case; that is, that a case shall come up altogether, and not by piecemeal. This, of course, is outside of the consideration of the particular orders made independently appeal-able; such as an order denying a motion for a new trial, etc. (§§ 421, 444, Code Civ. Proc.) But the statute of this State recognizes that something may occur even after a final judgment whereby a party may be so aggrieved that he should have an appeal; and the section last above cited provides for an appeal from a special order made after final judgment.

The case at bar is an action of an equitable nature. Are all the equities of the parties determined, and nothing left to be done but to carry the judgment into execution? We find it remarked in several New York cases that, although further proceedings before the master are necessary to carry the decree into effect, yet, if all the consequential directions depending upon the result of the proceedings are given in the decree, it is final. Some future orders of the court may be necessary to carry it into effect. So some future order of the court might be necessary to carry into effect a plain money judgment in an action at law.

It seems, from an examination of the decisions of the courts wherein a Code practice prevails, that the doctrine of allowing but one appeal is more strictly enforced; and that the judgment, to be appealable, must finally determine the rights of the parties. But this tendency of legislation and decision thereupon is not in conflict with the view that, even if a judgment does finally determine the rights of the parties, there may be still left to the court the office of putting the party into possession of his rights so determined, and the carrying into execution of such judgment. We entertain no doubt as to the correctness of these principles. Their application to particular facts of a case is sometimes difficult. The case at bar must be determined upon its own facts.

The case was tried partly by a jury and partly by the court. The jury found one issue — the existence of the partnership. This the court adopted, and found other facts, and added its conclusions of law. It is to be observed at this point that the decree recites that “ this cause came on to be heard and determined,” and, further, “that the only issue now being tried to said jury is whether or not a copartnership existed,” etc. So but one issue was being tried by the jury, and the other issues by the court. This appears by the stipulation of the parties, approved by the court, and by the decree itself, which determines, as observed, many issues other than that found by the jury.

On the motion to dismiss the appeal the findings and conclusions are not attacked, and so we may take them as correct.

The issue in this case was this: The plaintiff, on his side, contended that a partnership had existed; that it had been dissolved by plaintiff’s withdrawal; that the partnership property and assets were in the possession oí defendant; that plaintiff was entitled to an accounting; that he was entitled to have a receiver appointed, and the property of the firm sold, the debts of the firm paid, and the surplus divided between plaintiff and defendant, according to their several interests, which interests, the complaint alleged, were equal. The defense was a denial of the existence of the partnership, and all the facts auxiliary thereto pleaded by plaintiff, and the setting up that the relations of defendent and plaintiff were that of employer and servant. The judgment of the court, after adopting the finding of the jury, determined every issue above recited in favor of plaintiff, and furthermore found that the shares of the partners were equal.

It is true that the prayer of the complaint, in section 5, asks for judgment against defendant for such sum as may be found due from defendant to plaintiff. This portion of the prayer is wholly out of place in the pleading, for the whole theory of the complaint is that plaintiff wants the partnership affairs wound up and settled, and that out of the net assets of the concern plaintiff receive his share, and defendant as well receive his. The action is not on a money demand by plaintiff against defendant, as section 5 of the prayer would indicate. The complaint is wholly inconsistent with the idea that there is any indebtedness from defendant to plaintiff, for the reason that it alleges that plaintiff has drawn more money from the alleged partnership than has the defendant. The complaint, read as a whole, makes this clear, and thus section 5 is immaterial matter. (Davis v. Davis, 9 Mont. 275.)

The complaint does not ask judgment for any amount of money. It was not the nature of the action for the complaint to so pray. The complaint prayed for the determination of certain matters. Those matters were all determined by the judgment. The complaint prayed for certain relief. Every item of such relief was granted. Every right alleged, every relief prayed, by plaintiff, was determined in his favor.

Now what remains? Simply to put plaintiff in possession of that which the court has determined that he is entitled to ; simply to execute the judgment, which has settled the rights of the parties; simply to carry out relief granted. The court takes possession of the property by its receiver. The referee, as an accountant, states the account. The court parcels to this one his half, and to that one his half, and so executes the judgment. •

We are of opinion that the facts of this case fall within the rule above pointed out, and that the matters remaining to be ascertained are for the purpose of carrying out the judgment; not for the purpose of framing the judgment. The judgment is that each party is entitled to one half of the assets of the partnership, after the debts are paid. That is the determination of their rights. That is the judgment. The execution of this judgment is all that remains.

We are aware of the condition of the California decisions in this matter. Crowther v. Rowlandson, 27 Cal. 376, was an action to declare certain instruments void. Findings were made, and the case was referred to a master to state an account. In the opinion appears a dictum to the effect that the trial was not complete until the report of the referee was filed. This dictum is quoted and treated as a decision in Hinds v. Gage, 56 Cal. 486, and Duff v. Duff, 71 Cal. 513. The question is also touched upon in Harris v. San Francisco Sugar Refining Co. 41 Cal. 393; Jones v. Clark, 42 Cal. 180; Clark v. Dunnam, 46 Cal. 205; Rates v. Gage, 49 Cal. 126; Williams v. Conroy, 52 Cal. 414; White v. Conway, 66 Cal. 383; Dominguez v. Mascotti, 74 Cal. 269; San Diego etc. Co. v. Neale, 78 Cal. 63; Sharon v. Sharon, 79 Cal. 701.

We do not understand that it can be laid down as a general principle that a trial is incomplete, and hence a judgment is not final, simply because a reference is had for some purpose; that is to say, the fact of a reference being had after judgment, does not in itself determine that the judgment is not final. Nor do we think that the California cases intend to so hold, although in some of the cases from that court the principle is announced so generally and without qualification that the reader may be led to conclude that the court intended to announce that the fact of a reference after judgment in itself determined the non-final character of the judgment. But the case of Clark v. Dunnam, following Jones v. Clark, and the later cases, especially Sharon v. Sharon, bring the principle nearer to what we believe is the correct rule, as we have indicated above. A reference after judgment does not, per se, determine the character of the judgment as to its finality. It may be final, or it may be an interlocutory order, depending upon its facts. If the reference be for the purpose of executing the judgment only, after the judgment has finally determined all the rights of the parties, then the judgment is final.

We observe, from the study of the adjudicated cases, that great difficulty arises in applying the rule; but we are of opinion that in this particular case the facts warrant us in concluding that the judgment was final. The appeal therefore lies. The motion for a new trial was not premature, and the motion to dismiss the appeal must be denied, which is accordingly done.

Motion denied.'

Blake, C. J., and Harwood, J., concur.