Dickenson v. Codwise

11 Paige Ch. 189 | New York Court of Chancery | 1844

The Chancellor.

Some parts of the decree appealed from, and embraced in this appeal, are clearly interlocutory; and as the- appeal was not entered within the time allowed by law, for appealing from an interlocutory decree, a part of the appeal at least must be dismissed. Two questions, therefore, require to be considered: First, whether that part of the decree which declares and settles that the respondent is entitled, in her own right, to two parcels of the land of which the complainants sought partition, by their bill, and which two parcels the other parties in the suit are directed to release to her, under the directions of a master, is a final decree as to that part of the lands of which the partition was sought; and, Secondly, if that part of the decree is final and not interlocutory, whether the appeal can be dismissed so far as it seeks to review the assistant vice chancellor’s decision in respect to the interlocutory parts of the decree, and retained as to that part of the subject matter of the suit as to which the decree is final.

Upon the first question, I see no reason to doubt that so much of the decree as relates to the two parcels of land declared to belong to M. Codwise in her own right, is a final decree; as it absolutely disposes of that part of the subject matter of the litigation, and leaves nothing further to be done by the court in relation thereto. It is true, the other parties are directed to release to the respondent, under the direction of the master. But that is merely the manner of carrying into effect the final decree, in respect to that part of the subject matter of the suit, and does, not require the case to be brought again before the court. And as no reservation of the question of costs, as to this part of the litigation, is contained in the decree, and nothing is. said on the subject, neither payty can hereafter claim costs, as against the other, in reí ation to this part of the suit. If the question of costs had been reserved, in reference to this part of the subject of the suit, every portion of the decree would have been interlocutory, within the meaning of the statutory provision, which requires appeals from interlocutory decrees to be brought within fifteen days. But as the decree stands, it is the same, in effect, as if it had decreed that the complainant’s bill should be dismissed, as to these two parcels of land, without costs to either party; and had declared the rights of the parties as tenants in common in the residue of the premises, subject to the lien thereon of the amount which may be found due to the widow of the decedent for incumbrances thereon paid by her, and which has not already been reimbursed to her out of the rents and profits of the premises, or otherwise, and had directed the inquiries mentioned in the decree, preparatory to a final hearing and decree of partition, &c.

In reference to the second question, I see no difficulty in directing the appeal to be dismissed, so far as it was unauthorized because it was not made in time. The appeal would have been correctly made if it had been limited to that part of the decree which finally disposed of the claim to a partition of the two parcels of land which were decided to belong absolutely to the respondent. And if the residue of the appeal is dismissed, as unauthorized and irregular, and this part thereof is retained, it will be in the same situation as if the appeal had been thus limited when it was first entered. An order must therefore be entered accordingly; and without costs to either party on this application, in which the respondent succeeds but partially.