Cook's Heirs v. Bay

5 Miss. 485 | Miss. | 1840

Mr. Justice Trotter

delivered the opinion of the court.

The errors assigned are, 1st. That the court erred in granting a re-hearing of the exceptions to the report at a term subsequent to that at which they were overruled.

2. In sustaining the exceptions.

3. In withdrawing the issue which had been directed to the country at the first hearing.

The weight of the argument of the counsel for the appellants is based upon the consideration that the decree rendered by the chancellor in 1830, was final and conclusive between the parties, and hence that it was error to set aside any part of the same at a subsequent term, unless it had been done by a bill of review prosecuted according to the established rules of the chancery court. I will therefore proceed to the examination of the question, whether the decree of 1830 is final, for I concur with the counsel that this is really the main subject of inquiry. A final decree is one which makes an end of the case and decides the whole matter in controversy, cost's and all, leaving nothing further for the court to do. If the decree which was rendered in 1830, be tested by this rule, it seems to me to-be difficult to conceive how it can be called final. It did not profess to be final, nor could it have been so considered by the chancellor. It did no more than to vacate certain sales of the property of Cook, to appoint a receiver to whom the property which had passed by the sales so vacated should be delivered. It then ordered an account to be taken and stated by commissioners, and detailed the principles by which the commissioners were to be governed in taking the same. It also directed an issue to ascertain whether any, and what damages Cook’s estate had sustained by the mismanagement charged in the bill, and reserves the question of costs and all other questions in the mean time, that is until the coming in of the report, and the return of the verdict on the issue which was sent down to the country for trial. Can this decree be said to make an end of this case, and to decide the whole matter in dispute ? Was it ready for endorsement? The chancellor wanted the materials for a final decree. He took the steps necessary to procure them. Until they were furnished, he could do no more than make the interlocutory orders which he did. He arrived at the principles upon which a final decree could be rendered, but he was not yet in possession of the facts necessary to enable him to make it. In his opinion, the estate of Cook had sustained damages by the mismanagement of the administrator, but as the quantity of damages was not satisfactorily shown, he referred that question to a jury, as he had a right to do. It was precisely similar to an interlocutory judgment at law, and the award of a writ of inquiry to ascertain the damages. I have examined the cases cited by the counsel for the appellants, and none of them do in my opinion sustain the argument that this is a final decree. On the contrary, it may be safely stated as a rule deducible from all the cases on this subject, that a bill of review is only required after an enrolment of the decree, when it is made final, and that an interlocutory decree, whatever may be its character, rests in the breast of the court until it has been made final. These distinctions are fully taken in the case of Harvey et ux. v. Branson, 1 Leigh, 118. In that case a commissioner had been appointed to sell the land decreed to complainants, who was to report to the court, &c. The rights of all the parties, however, were fully and finally settled, and costs decreed. The appointment of the commissioner was merely to execute the decree, precisely as in the case of a sale under a decree to foreclose a mortgage. But that is very different from the present case, where commissioners were appointed to enable the court to ob- ■ tain possession of the whole case. The issue was directed for the same purpose. This was then unquestionably an interlocutory decree, and consequently open to re-examination by a petition for that purpose. In the case of Calk v. Stribling, 1 Bibb, 124; the court of appeals of Kentucky lay it down as a well established rule, that a court of chancery .has a right to alter an interlocutory decree at any time before a final decision thereon, and without being requested by either party. This opinion is confirmed by Chief Justice Marshall, in the case of Field v. Holland, who observes, a court of equity may ascertain facts themselves, if the evidence enable them to do it, or may refer the question to a jury, or to auditors, and that after ah issue ordered, the court may proceed to a final decision, without trying the issue, or even setting aside the order. The court in this case referred some of the questions in issue, to a jury, and others to auditors. Tnese are matters resting in the sound discretion of the chancellor, and we are not at liberty to say that he erred. The issue had been in the circuit court for nearly seven years, and was not then tried, and there appeared to be no disposition to bring it to trial. The chancellor could only remedy this delay by proceeding to try the question himself, as he did, and as he had an undoubted right to do. If I am correct in holding the decree of 1830 to be only interlocutory, the 1st error assigned is not well taken, and the chancellor had it completely within his power at any time before final decree, to alter any order he had made. The decree was entirely under his control, and the request or motion of neither party was necessary.

In this case I am satisfied from a very careful examination of the evidence, that there is no error in the allowance of the exceptions taken to the report of the commissioners. The counsel have waived the particular examination of the several exceptions, considering that the assignment of error predicated on the decision of the chancellor, by which they were sustained, depended mainly upon the question whether the decree was final or interlocutory. The reasons given by the chancellor in support of his decree are fully warranted by the proofs in the cause, and it is not deemed necessary to bring forward the testimony in the opinion. It is upon the record, and is clear and convincing. Let the decree be affirmed.