Gerrish v. Black

| Mass. | Mar 15, 1872

Colt, J.

Upon this bill to redeem, a decree was obtained directing a surrender of possession and release of the mortgaged premises upon payment at a fixed time of the amount previously ascertained to be due with interest; and requiring an assignment of the claims for uncollected rent and also an adjustment between the parties of the more recent accounts for rents received, sums paid for repairs, and commissions. The decree provided in case any questions should arise as to carrying it into execution, that either party might apply to the court for further orders and decrees, expressly reserving the question of costs for future consideration, and adding a clause that in default of payment the defendant should hold the premises as foreclosed and discharged of the mortgage.

After the time fixed for the payment of the money, upon motion of the plaintiff, alleging a failure to make payment through a mistake of his own and his solicitors, a second decree was passed, giving further time, and now the authority of the court upon motion only to alter the terms of the first decree, is questioned by the plaintiff.

It is a rule of chancery practice that after a decree has been enrolled, that is, after it has become a matter of record, there can be no rehearing on motion or petition. This is a general rule, to which there are some exceptions, not necessary now to notice. Thompson v. Goulding, 5 Allen, 81. A motion to vary the minutes of a decree may be sustained at any time before the decree is recorded, but not subsequently, because then it is a recorded judgment. But this rule applies only to final decrees, which fully decide and dispose of the whole merits of the cause, and reserve no further questions for the future judgment of the court. A decree is final which provides for all the contingencies which may arise and leaves no necessity for any further order of the court to give all the parties the entire benefit of the decision.

The first decree in this case cannot be regarded as a final decree. It provides that the defendant shall pay over certain rents, less repairs and commissions, for ascertaining the amount of which no provision is made, and requiring in case of disagreement a fur* ther hearing by the court. The right to apply for such hearing is expressly reserved, and the important question of costs is left open. The cause was therefore open and pending at the time the decretal order was passed, and it was within the authority of the court to make it upon a hearing had upon the plaintiff’s petition.