Barbara Gesell's Appeal

| Pa. | Oct 1, 1877

Mr. Justice Mercur

delivered the opinion of the court,

This is an appeal from an order of the Orphans’ Court awarding an inquest of partition. A motion is made to quash the appeal on the ground that the order is not a final decree.

The 59th-section of the Act of 29th March 1832, Pamph. L. 213, declares “ any person aggrieved by a definitive sentence or decree of the Orphans’ Court, may appeal from the same to the Supreme Court.” It further declares “ no appeal shall be allowed unless the same be entered and security given within three years after the final decree.” Thus it appears the statute gives no appeal except from a definitive or final decree. It therefore follows that unless the awarding of an inquest be a definitive or final decree, no appeal lies in this case.

In one sense every decision or order of the court, during the progress of a case, may be called final. That particular step may not be retraced. Yet in law they are intermediate or interlocutory, not final or definitive. A writ of error, nor an appeal, will not lie at each stage of the proceeding. However much an intermediate decision or order may affect the result, it is not subject to review here until that final result has first been reached. Hence a writ of error does not lie to a judgment quod computet, in account render : Beitler v. Zeigler, 1 P. & W. 135; nor to judgment substituting parties on a scire facias: Bossler v. Johns, 2 Id. 331; nor to a judgment given for the plaintiff, upon a demurrer in an action sounding in damages: Logan v. Jennings, 4 Rawle 355" court="Pa." date_filed="1834-01-21" href="https://app.midpage.ai/document/logan-v-jennings-6314530?utm_source=webapp" opinion_id="6314530">4 Rawle 355; nor on a judgment of respondeat ouster: Foster v. Commonwealth, 8 W. & S. 83. So, a decree of the Orphans’ Court, for a trustee under a will to file his account, is interlocutory, not final, and no appeal lies therefrom: Eckfeldt’s Appeal, 1 Harris 172; nor does an appeal lie to an order of the Orphans’ Court to execute a decree of sale: Robinson’s Appeal, 12 P. F. Smith 213; Robinson et ux. v. Glancy, 19 Id. 89.

It was held in Hess’s Appeal, 1 Watts 255" court="Pa." date_filed="1832-11-15" href="https://app.midpage.ai/document/hesss-appeal-6311086?utm_source=webapp" opinion_id="6311086">1 Watts 255, that an order of sale by the Orphans’ Court, for the payment of debts, was of such a definitive character that an appeal would lie. So it will lie to a decree of sale made after confirmation of partition: Robinson’s Appeal, supra. The reason therefor then given by the present chief justice, is, “ that the decree condemns the property to conversion and the owner’s title to divestiture.” The opinion distinguishes between the decree of sale, and the order of sale, that executes the decree.

The awarding of an inquest does not condemn the property to conversion, nor the owner’s title to divestiture. It is not necessarily any more than the first step towards a valuation or appraisement. It has none of the characteristics of a decree of sale. It disturbs no right. It settles no title. It authorizes no sale.

It may result in a division of the land; but the whole action of the inquest works no conversion of the property. It divests no title. A full execution of the order still leaves the property, land, and the title of each owner in every part undivested. The confirmation of the court is necessary to give due effect to the inquisition. All previous action is only so many steps towards this result. When it is reached, the decree in partition is first made. Prior to this time, all action is in the nature of an inquiry to ascertain whether, and how, partition can legally be made. When the report of the inquest comes up for confirmation, and the court is asked to decree partition, all persons interested have a right to be heard. Objections to jurisdiction, to the alleged rights of the parties, and to the regularity .of the proceedings, may all be considered and determined. The decree then made that the partition remain firm and stable for ever, is definitive and final. Here then is a resting place. The partition proper is then completed. It precedes any order of sale, or any allotment of the purpai’ts. From this final decree any person aggrieved may appeal. Any person interested can have his alleged grievances adjudicated and the validity of the partition determined before he is required to elect to take a purpart, or suffer the property to go to a sale. An appeal duly taken, with security, would suspend or supersede further action predicated on the decree.

The cases of Herr v. Herr, 5 Barr 428 ; Painter v. Henderson, 7 Id. 48 ; Lair v. Hunsicker, 4 Casey 115; and Murklein v. Trapnell et al., 10 Id. 42, are not in conflict with the views now stated. They show the conclusive effect of a decree of partition, in the Orphans’ Court, unappealed from. It cannot be controverted collaterally. We fully assent to their correctness. The effect of a definitive decree in partition is there correctly stated; but the mere order awarding an inquest has no such conclusive effect. The order is preliminary only. No case has been cited showing this court ever held otherwise. It is in law, as well as in fact, the beginning only, and in no' sense the end. It is clearly interlocutory. As was well said by Mr. Chief Justice Gibson in Eckfeldt’s Appeal, supra, “ it would be oppressive to drag a suitor here on every intermediate order.” As the only assignment of error is to awarding the inquest, and no decree of partition has been made, the appeal is premature.

Appeal quashed.

Chief Justice Agnew filed a dissenting opinion, in which Justices Gordon and Woodward concurred.