119 N.J. Eq. 514 | N.J. Ct. of Ch. | 1936
This cause is before the court on defendants' petition to open an order confirming the sale of mortgaged premises. Complainant, who was the purchaser at the foreclosure sale, moves to dismiss on the ground that the petition was filed too late, namely, more than forty days after confirmation. Counsel say that in the absence of newly discovered evidence or special equities, an order which is not a final decree cannot be opened on application made after forty days; that an order confirming sale is not a final decree; that the petition discloses no special equity and so should be dismissed.
The conclusion of counsel runs counter to the practice of this court in numerous cases in the last few years. All the members of the court have received and acted upon similar applications more than forty days after the date of the order *515
confirming sale. A few such cases have been reported. Lurie v.J.J. Hockenjos Co.,
Counsel, to prove his major premise that an application to open an interlocutory order must be made within forty days, first calls attention to section 111 of the Chancery act. Comp. Stat.p. 450, as amended P.L. 1914 p. 133. "All appeals, except from final decrees, shall be made within forty days after filing the order or decree appealed from." To this enactment, he applies the rule of Watkinson v. Watkinson,
The first question is whether the rule applies to a motion to open an interlocutory order or decree, and so removes such an order from the control of the chancellor after the expiration of forty days.
The question came before the United States supreme court inSimmons Co. v. Grier Bros. Co.,
This decision has great weight since our court of errors and appeals derived the limitation on bills of review from the United States supreme court. Watkinson v. Watkinson, supra.
Our appellate court has held that a bill of review is not required to open an interlocutory order in a cause still pending. It is appropriate only to review a final decree. FranklinElectric Light Co. v. Fort Wayne Electric Corp.,
The limitation on the review of a final decree is a phase of public policy: A final decree should be a finality. Miller v.McCutcheon,
There are, however, three cases in our reports which containdicta which may mean that a motion to open an interlocutory decree cannot be entertained (except on special grounds) after the time to appeal has expired. Cumberland Lumber Co. v.Clinton Hill, c., Co.,
Because this decision of Vice-Chancellor Lewis was based on several grounds, I feel that it does not definitely establish that when the time to appeal elapses an order which is not a final decree passes beyond the control of the court, except for newly discovered matter or some special equity. But I need not decide the point.
Now to the second question — whether an order confirming sale is a final decree within the meaning of section 111 of our Chancery act (Comp. Stat. p. 450): "All persons aggrieved by any order or decree of the court of chancery, may appeal from the same, or any part thereof, to the court of errors and appeals; and all appeals, except from final decrees, shall be made within forty days after filing the order or decree appealed from; and all appeals from final decrees in the said court shall be made within one year after making such decree; unless a notice of lispendens has been filed, or on bills to quiet title, in which cases, all appeals from final decrees shall be made within three months after filing the decree appealed *518 from; provided, in cases where the person entitled to such appeal from any final decree be an infant or insane, he shall have one year to bring such appeal, after such disability shall be removed, except where a notice of lis pendens has been filed or the bill is filed to quiet the title of the lands, in which case the appeal shall be taken within three months after such disability is removed." P.L. 1902 p. 545, as amended P.L. 1907p. 452.
All orders and decrees of chancery may be divided into four classes:
I. Orders which are not appealable because no one, technically speaking, is aggrieved. Such are the ordinary orders made in the progress of a suit for the purpose of putting the case fairly at issue, obtaining the requisite evidence and affording the parties a hearing. Coryell v. Holcombe,
II. Orders which are appealable within forty days and which, if not appealed within that time, are not reviewable at all. This group includes all orders by which a party may be aggrieved but which do not enter into the final decree — orders granting temporary injunctions or appointing receivers pendente lite.
Such is an order striking an answer with leave to answer over.New Jersey Building Loan and Investment Co. v. Lord, supra;Mackay v. Mackay,
III. Orders appealable within forty days and which also may be reviewed on appeal from the final decree. Decker v. Ruckman,
IV. Decrees which are appealable in one year (except a lispendens has been filed or the bill is one to quiet title) provided, if the appellant be an infant or insane, the time is extended until the disability be removed. These are final decrees.
It seems from this classification that the legislature intended that any order or decree which involves the merits of the controversy and which concludes the substantial rights of the parties, shall be subject to review within one year, or longer in case of disability. Certainly it is settled that all such orders, if they precede the final decree, are open to review for that length of time after the final decree. No reason is apparent why the legislature should provide a different or shorter limitation for orders made after the final decree so-called and which conclude the substantial rights of the parties. Such orders should be considered final decrees within the terms of section 111.
There may be several "final" decrees in the same suit. For example, in interpleader, the decree discharging complainant and the decree awarding the fund are both final. National Bank v.White,
Tests for determining whether an order is final for the purpose of appeal may be found in Ellison v. Gray, which was an appeal from an order of the chancellor sustaining the receiver's disallowance of a claim. The respondent moved to dismiss on the ground that the appeal was not taken within forty days.
"The motion cannot prevail. The order of the chancellor on appeal from the decision of the receiver, as provided for in the eighty-second section of an act concerning corporations, is in the nature of a final decree. It has all its attributes and characteristics. The statute conferring the right of appeal from the decision of the receiver primarily clothed with power to decide, manifestly contemplated that the result should be conclusive. It is final in its nature, disposing of the whole merits of the case, leaving nothing for further examination or judgment. An order which determines the whole controversy between the parties without reserving anything for further consideration is a final order. In this case, the claim of the appellants was definitely disallowed and the party thereby dismissed from the case. Newark Plank Road Co. v. Elmer,
In Central Trust Co. v. Locomotive Works, cited above, certain orders were considered to be final decrees because they were "final in their nature and made in matters distinct from the general subject of litigation — the foreclosure of the mortgages."
Now to the nature and effect of an order confirming sale. InNational Bank of the Metropolis v. Sprague,
There may be distinction between an order confirming sale under our statute and an order setting aside or refusing to set aside a sale. In the three cases above cited, the sale was attacked for some illegality or fraud in its conduct. It has been held that the statutory order confirming sale merely covers the point that the property brought the highest and best price that could be obtained in cash. Oakley v. Shaw, 69 Atl. Rep. 462; Koegel v.Koegel,
In Vanderbilt v. Brunton Piano Co.,
In Bluestone Building and Loan Association v. Glasser,supra, I said that an order confirming sale is in the nature of a final decree. As presently construed, it is conclusive as to the value of the property. It determines the controversy between the bondsman and the complainant, namely, the amount due on the bond. It disposes of the whole merits of the case, leaving nothing for further examination, or for further judgment in the court of chancery. It is a final decree within the meaning of the statute relating to appeals.
One further point regarding the time in which the motion to open the order might be made. The order confirming sale in the present cause was taken without objection, therefore it was not appealable. Vice-Chancellor Backes said, in Jones v. Jones,
I will now assume that an order confirming sale is not in the nature of a final decree and that a petition to open it must be filed within the time limited for an appeal, namely, forty days, unless the application is based on newly discovered evidence or some special equity. The petition before me does not purport to be based on newly discovered evidence. The question is the meaning of the term "special equity" as used in Watkinson v.Watkinson.
In that case, Judge Vroom stated the grounds for a bill of review. "Such a bill must rest on error in law upon the face of the decree without further examination of matters of fact, fraud in procuring former decree, new facts, or upon some new matter which has been discovered after the decree and could not possibly have been used when the decree was made." And later in his opinion, discussing the time within which the bill might be filed, he said: "The time of appeal having expired when this application for leave to file the bill of review was made, the petitioner was barred unless her case *523
could be brought strictly within the exception of newly discovered evidence or some special equity that would give the court the discretionary power to make the order." In the latter quotation the exception of newly discovered evidence or of some special equity, is equivalent to the expression in the first quotation — fraud, new facts, or new matter discovered after the decree; the exception embraces all grounds for a bill of review, save error apparent. It follows that the statutory period for appeal bars a bill of review only when the bill rests on error in law upon the face of the decree. This is made more certain when we examine the opinion in Thomas v. Harvie's Heirs, 10 Wheat.146;
The petition before me contains all the grounds for refusing confirmation which are set forth in Young v. Weber,