Garrett v. Dial, 13 S.C. 254

Garrett v. Dial

13 S.C. 254 | S.C. | 1880

The opinion of the court was delivered by

McIver, A. J.

The questions raised by this appeal are:

First. Whether the decree of Chancellor Carroll, filed in 1868, was entitled to rank as a judgment in the administration of the assets- of Dial.

Second. If so, are not the plaintiffs estopped from claiming such effect for it, by reason of the action of their attorneys in having it merged into and made a part of the judgment recovered in 1877, after the death of Dial.

Third. If that be not so, are not the plaintiffs estopped from setting it up as a judgment recovered prior to the death of the intestate, by the order passed by Judge Wallace in July, 1878 ?

Since the case of Woddrop v. Ward, 3 Desaus. 203, it has not been doubted that in this state decrees in equity rank as judgments in the administration of assets of the estates of deceased persons. Such was the law in England, even when decrees acted only in personam and were enforceable only by process of contempt and by writ of sequestration. 2 Wms. on Ex’rs 731, (2d Am. ed.); Morrice v. Bank of England, 4 Brown, P. C. 287. It was not, however, every decree which was entitled to that rank, for, as is said in the next page of Williams on Ex*259•ecutors: “ If a decree be not conclusive of the matters in question, as if it be merely to account and do not ascertain-the sum to be paid, it is analogous tó a judgment quod computet at law, ■and that is no complete judgment till the account be stated.” Smith v. Eyles, 2 Atk. 385. Such a decree is like an interlocutory judgment at law which has been held, in the case of McIntosh v. Wright, Rich. Eq. 385, not to be such a judgment as is contemplated by the act of 1789. Gen. Stat. 457. To give it such a character, it must be a final decree, and by that we understand (speaking of a money decree) such a decree as not ■only ascertains that a definite sum of money is due from one party to another, but orders the payment of the same. It must be such a decree as will authorize the issuing of an execution for its ■enforcement. As is said in Haskell v. Raoul, 1 McC. Ch. 32, a decretal order upon which an execution may be taken out is a final decree. The Supreme Court of the United States, in the case of Forgay v. Conrad, 6 How. 201, have declared the rule to be (the italics being ours): “ When the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, ' and the complainant is entitled, to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, ■although so much of the bill is retained in the Circuit Court as is necessary for the purpose of adjusting by a further decree the ■accounts between the parties pursuant to the decree passed.” This rule is re-affirmed in the same language in the more recent case of Thomson v. Dean, 7 Wall. 342.

The inquiry, therefore, is whether the decree of Chancellor ■Carroll was such a decree as authorized 'the issuing of an execution for its enforcement. We do. not think so. No definite sum was ascertained to be due by Dial to the plaintiff, and certainly there was no order for the payment to them of such sum. The ■original report of the commissioner is not before us, and it is not stated that in such report he recommended that any particular sum of money should be paid to the plaintiffs by Dial;.and -even if he had made such recommendation there is no confirma*260tion of the report, but, on the con tray, it is recommitted for reformation in the several particulars indicated, and no order for the payment of any particular sum of money by Dial to the plaintiffs. We do not see, therefore, how, without some further action on the part of the court, any execution could have been issued to enforce the decree; for, in order to do so, as the law-then stood, it would have been necessary to enroll the decree., and to do this it would have been necessary to show some decree of the court, not only ascertaining that a definite siim of money was due by one party to the other, but also an order for the payment of the same. It may be, as was argued by the counsel for the respondents, that the decree contained within itself the data from which the amount due could have been ascertained by a mere arithmetical calculation, yet there still is an entire absence of any order or decree for the payment of such amount, and without such order there is no such judgment as would authorize the issuing of an execution to enforce the payment. It would be like a case under the old practice, wherein an action on a note to wkicN no defence was interposed, though the record would furnish the data from which the amount due could be ascertained by a mere arithmetical calculation, yet, still, until that was done, in the mode prescribed by law, there could be no final judgment by the judge’s order referring it to the clerk to assess the damages, but the judgment would continue to be a merely interlocutory judgment and not entitled to rank as a judgment in the administration of the assets of an intestate’s estate. So in this case Chancellor Carroll might have had before him the data by which he could, by a simple calculation, ascertain what was due from the defendant to the plaintiffs, but the fact nevertheless remains that he did not do it, for reasons which are apparent in the decree itself, and did not decree any specific amount to be paid by the defendant to the plaintiffs. In this respect the case differs from that of Sullivan v. Thomas, 3 S. C. 531, for there the Circuit judge, in the exercise of his chancery jurisdiction, after having ascertained the specific amounts due to the several parties, concludes with an order for the payment of the said sums of money to the said parties. The case of Stovall v. Banks, 10 Wall. 583, to which our attention has been especially invited *261by the counsel for the respondents, does not in anywise conflict with the views hereinbefore expressed, for in that case the decree not only determined the sum due to each of the complainants and directed its payment, awarding execution therefor, hut the execution was actually issued. The case of Atherton v. Fowler, 91 U. S. 143, which is also relied upon, was a case in which the Supreme Court of California reversed the judgment of the inferior court and directed a modification thereof as to the amount, of damages, but without permitting further proceedings below, if the defendants consented to the modification, and the record showed that ■such consent was given before the writ of error was taken out. It was, therefore, very properly held that the objection that this was not a final judgment because the case was remanded to the inferior court for further proceedings, was not well taken, because it was not true in point of fact that the case was remanded for further proceedings by the court below, but only for the purpose of enabling the defendants to consent to a modification •of the judgment in respect to the amount of damages. When such •consent was given, as was done before the writ of error was taken out, there was a final termination of the case, and there was nothing further for the court to do, and the judgment was, therefore, a final judgment. But if the consent had not been given, or until it was given, there was no judgment, either final or otherwise. It was, practically, therefore, nothing more than :an order for a new trial, nisi the plaintiff would remit a part of the damages recovered; upon such remittitur -being entered, the judgment would become a final one, as nothing would be left for the court to do. But in the case under consideration the report ■of the commissioner was recommitted for the purpose of enabling that officer to reform the account'in accordance with the directions contained in the decree, so that it might form the basis of •a final judgment, and until' such reformation was made and reported to the court, there was. nothing upon which to base a final judgment ascertaining a certain definite* amount to be due by the one party to the other, and directing its payment.

Under this view of the case, the other questions presented by the appeal cannot arise and need not be considered.

*262The judgment of the Circuit Court is set aside, and the case remanded for further proceedings in accordance with the views herein expressed.

"WillARi), C. J., concurred.