Desvergers v. Parsons, 60 F. 143

Desvergers v. Parsons

60 F. 143 | 5th Cir. | 1894

PARDEE, Circuit Judge,

(after stating the facts as above.) The master’s report shows that all the matters in controversy between Parsons, the original complainant, and Desvergers, the main defendant and cross complainant, (and between them and all other parties,) raised by the original bill, amended bill, answers, cross bills, and replications, were submitted to and reported on by him; the *150exceptions to the master’s report show that all the said issues were submitted to the court at the April term, 1888, for final adjudication; and the decree of July 12, 1890, shows that the court at that time passed upon and adjudicated all the rights and matters in controversy, — all the merits of- the case, — leaving nothing to be further disposed of, or in any wise open, except to carry the said decree into execution. The decree itself was intended to be final, and was complete and formal in every respect, except that by inadvertence the eighth equity rule in respect to the execution of the decree was not complied with, no time being therein prescribed within which certain conveyances and transfers ordered to be made by Desvergers and Ruckert should be executed. The decree meets all the requirements of a final decree, as it terminates the litigation on' the merits of the case, and settles the rights of all parties. Many cases can be cited in support of this' conclusion, from Ray v. Law, 3 Cranch, 179, down to McGourkey v. Railroad Co., 146 U. S. 536-569, 13 Sup. Ct. 170, where the cases respecting final and interlocutory judgments are reviewed, and the distinctions between them pointed out. We content ourselves with citing Grant v. Insurance Co., 106 U. S. 430, 1 Sup. Ct. 414, where it is declared that “the rule is well settled that a decree, to be ‘final,’ within the .meaning of that term as used in the act of congress giving this court jurisdiction on appeal, must terminate the litigation of the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but execute the decree it had already rendered.”

Section 11 .of the act of congress to establish circuit courts of appeals, by which this court is created and its jurisdiction deter-, mined, provides “that no appeal or writ of error by which any' order, judgment or decree may be reviewed in the circuit courts of appeals under the provisions of this act, shall be taken or sued out, except within six months after the entry of the order, judgment or decree sought to be reviewed.” In this case the decree appealed from was rendered on February 31, 1892; it was rendered on the issues raised by a bill of review brought to review and correct errors of law on the face of the decree rendered July 12, 1890. Under such a bill of review, no inquiry can be made into the evidence of the case in order to show the decree to be erroneous in its statement and finding of facts. See Freeman v. Clay, 2 U. S. App. 254-267, 2 C. C. A. 587, 52 Fed. 1, where the rule is recognized and authorities collated. The issues made by the bill of review in this case and the answers thereto are solely in regard to matters of law apparent upon the face of the decree. The decree deals only with such matters of law, and in no respect deals, or attempts to deal, with matters based upon the evidence in the case. The appellant assumes that the decree of July 12, 1890, was not a final decree, and that, no final decree being rendered in the case until February 11, 1892, his present appeal brings before us for review the entire case, and permits us to inquire into the evidence, and determine whether the findings of the master and of the court upon the merits of the case were correct or not. As we have shown, *151tbe decree of July 12, 1890, was a final decree, and, as no appeal was taken therefrom within six months from the time of its rendition, it can only be reviewed in this court, as in the court below, upon the bill of review which was filed in the -case, which bill of review, as we have seen, opens up only matters of law apparent on the face of the decree. As to such matters there are no errors which need serious consideration. The decree appealed from is affirmed.