Forbes v. Tuckerman, 115 Mass. 115

Forbes v. Tuckerman

115 Mass. 115 | Mass. | 1874

Gray, C. J.

The reasons upon which the English courts of chancery have required the husband to be made a party to a suit by the wife in relation to her separate property, are because he may have an interest in the property himself, and because he is the lawful, protector of her interests. Story Eq. PL § 63. Neither reason is applicable to this case.

The suit is brought by the wife for income payable to her by the terms of the indenture of trust under which the appellant holds the property. The demurrer, so far as it was based on the husband’s interest in the property, or on his having been a party to the indenture, was waived at the argument. And the making him a party to the bill, merely because he is the plaintiffs husband, has been dispensed with by our statutes.

The earliest statutes which enlarged the wife’s powers over her property expressly enabled her to commence, prosecute and defend suits in. equity as well as at law. Rev. Sts. c. 77, § 4; reenacted in Gen. Sts. c. 108, § 32. St. 1845, c. 208, § 5. Under those statutes, it is indisputable that her husband need not have been marie a party, unless he had an interest in the property. Conant v. Warren, 6 Gray, 562. The later statutes, making her independence in regard to property more complete, and authorizing her, in general terms, “ to sue and be sued in all matters relating to her property in the same manner as if she were sole,” cannot by any reasonable construction be taken to give her a less extensive power to assert and defend her rights in court ; but at law oblige, and in equity permit her to sue alone, when no interest of her husband is involved. Sts. 1855, c. 304, § 4; 1857, c. 249, § 3. Gen. Sts. c. 108, § 3. Hennessey v. White, 2 Allen, 48. Burns v. Lynde, 6 Allen, 305. The demurrer was therefore rightly overruled.

The appellant further contends that the order overruling the demurrer was a final decree, and that he could not therefore be required to answer over pending his appeal from that order. But this position is founded on a misapprehension of the statute which regulates proceedings in chancery.

By that statute, cases in equity, and motions and other applications therein,, whether interlocutory or final, are to be heard and determined in the first instance by one justice; from all hia decrees any party aggrieved may appeal to the full court; if the *119decree appealed from is a final decree, all proceedings under it are stayed until the determination of the appeal, but the justice who made it may pass such orders as are needful for the protection of the rights of the parties meanwhile, subject to be modified or annulled by the full court on motion; if the decree appealed from is interlocutory, the appeal does not suspend its execution, or transfer the rest of the case to the full court; all interlocutory orders not appealed from are open to revision on appeal from the final decree, so far as the latter is erroneously affected thereby; and if the justice making any interlocutory decree or order is of opinion that it so affects the merits of the controversy that the matter ought to be determined by the full court before further proceedings are had, he may report the question for that purpose and stay further proceedings. Gen. Sts. c. 118, §§ 6-12. In short, the final decree of a single justice is not, if appealed from, to be carried into execution until affirmed by the full court; but an appeal from any interlocutory order is not to delay the progress of the cause before oue justice, except at his discretion; and when an objection is interposed, which in his opinion has no merits, it is his duty to proceed to a final determination.

No decree is a final one, which leaves anything open to be decided by the court, and does not determine the whole case. Even an order allowing or sustaining a demurrer is not a final decree, unless, in terms or effect, it dismisses the bill and puts the case out of court. De Armas v. United States, 6 How. 103. Merchants' Bank v. Stevenson, 7 Allen, 489. McElwain v. Willis, 3 Paige, 505. Baker v. Mellish, 11 Ves. 68. When a demurrer is overruled, a final decree for the plaintiff is not entered of course, but the defendant, upon proper application, where there is no rule of court upon the subject, may have leave to answer. Trim v. Baker, Turn. & Russ. 253. 1 Dan. Ch. Pract. c. 14, § 6, & Amer. note. By the twelfth rule in chancery of this court, if a demurrer is overruled, the defendant shall proceed to answer the bill, and if he fails to do so within a certain time, the plaintiff may enter an order that the bill, or so much thereof as is covered by the demurrer, be taken for confessed, and the matter thereof may be decreed accordingly, unless good cause appear to the contrary. 104 Mass. 570. A similar rule, copied from an earliei nde of the Supreme Court of the United States, has been in force *120and constantly practised upon in this Commonwealth ever since 1840; 7 Wheat, x; 24 Pick. 415; 14 Gray, 857; and must be deemed to have been in the contemplation of the legislature when they framed the General Statutes.

Indeed the counsel for the appellant relies upon this rule so far as to claim the right to answer over after the overruling of his demurrer by the full court; and frankly maintains that an order overruling a demurrer is not such a final decree as to terminate the whole controversy or preclude him from making a full defence to the suit upon its merits, and yet is a final decree in such a sense as to exhaust the power of a single justice over the cause until the appeal from that order is determined. But it is well settled by the highest authorities that even when an order overruling a demurrer is followed by an order taking the bill for confessed, and referring the cause to a master for an account according to the prayer of the bill, neither is a final decree in any sense, but a mere interlocutory order in favor of the plaintiff, and on the return of the master’s report the final decree may be the other way. Smith v. Eyles, 2 Atk. 385. Bank of United States v. White, 8 Pet. 262. Perkins v. Fourniquet, 6 How. 206, and 16 How. 82. Pulliam v. Christian, 6 How. 209. Beebe v. Russell, 19 How. 283. Gerrish v. Black, 109 Mass. 474.

The necessary conclusion is, that it was within the discretion of the justice who overruled the demurrer, to order the appellant to answer notwithstanding his appeal, and that such discretion was wisely exercised in this case. Order affirmed.