Gilleylen v. Martin

73 Miss. 695 | Miss. | 1896

Whitfield, J.,

delivered the opinion of the court.

The decree of October 3, 1894, is a final decree, from which an appeal may be prosecuted. This is settled in Denson v. Denson, 33 Miss., 563, the court saying: “There can be no doubt that it [an appeal] would lie to the decree dismissing the bill of review.” See, to same effect, Belt v. Davis, 1 Cal., 139; McCall v. Hitchcock, 7 Bush (Ky.), 616; Harvey v. Fink, 111 Ind., 249; 2 Enc. Pl. & Prac., p. 109.

In Cole v. Miller, 32 Miss., 101, the court say: “From these characteristics of a bill of review, it is evident that it does not constitute a part of the original cause, and, although it has reference to it, yet that it is an independent proceeding. ’ ’

In Denson v. Denson, supra, where there was a preliminary objection that the writ of error was void, because it “ embraced both the original decree establishing the indebtedness of the administrators and that dismissing the bill of review,” the court held the objection untenable, observing, through the same judge who delivered the opinion in Cole v. Miller, supra: “Although such a bill is, in certain respects, an independent proceeding, yet it has direct reference to the original decree, and brings up for consideration the errors therein contained. If the bill of review be properly filed, so as to give the court jurisdiction of it, the consideration of it, upon writ of error, necessarily involves the errors in the original decree, without embracing that decree specially in the writ. . ' . But no sufficient reason is perceived why he should not be permitted to have the question of the propriety of the filing of his bill of review, as well as the matters of error in the original decree, examined by means of one and the same writ of error, for the writ, in either respect, has reference to the same substantial thing — the errors in the original decree; and in such a case, though there was error in dismissing the bill of review for noncompliance with the rules regulating the filing of such bills, yet if, upon consideration of the original decree and proceedings, there was found to be no error upon their face, the decree would be affirmed upon the writ of error. This practice is also sanctioned by the well-established principle of chancery proceedings of saving expense and preventing multiplicity of suits, and we therefore do not think this objection tenable.”

From these cases two things are clear: First, that the bill of review in the case before us, is “not a part of the original cause” — the partition proceeding — but, as to that, “ an independent proceeding, ’ ’ and from a final decree in which an appeal lies, quite apart from the question of appeal in the original partition proceeding; second, that, though in this sense an independent proceeding, yet, from the very nature and office of a bill of review, an appeal from a final decree sustaining a bill of review and vacating all the proceedings in the original partition cause, being thus, by such bill, brought under review, brings before this court the propriety of the action of the court below in so sustaining such bill, and also, from the nature of the case, the propriety of its action in vacating the proceedings under said original partition cause back to the petition for partition in such original cause, for errors apparent upon the face of the original record. We therefore examine the propriety of this latter action to the extent indicated, and, without going over the errors set forth by the bill of review, as apparent upon the face of the original partition record, seriatim, it is clear that the action of the chancellor in sustaining the bill of review and annulling the original partition proceedings, as indicated, was correct, and the decree of October 3, 189é, is accordingly affirmed.

A fundamental error in the original partition proceeding was in declaring that the land should be divided into live equal shares. At the time the proceeding was filed, July 28, 1882, there was a subsisting unassigned dower interest. The petition for partition did not ask to have the dower assigned and the remaining two-thirds of the land partitioned, but to have the whole land partitioned into five equal shares in fee simple. With an outstanding, subsisting, unassigned dower, the land was not the subject of partition. Code 1880, §2553; Fox v. Coon, 64 Miss., 465; Wood v. Bryant, 68 Miss., 198; Ligon v. Spencer, 58 Miss., 37.

Upon the return of this case to the court below, after the decision in 70 Miss., 324, when the decree of October 3, 1894, above affirmed, had been rendered, the bill of review had performed its office, and it — considered as an independent proceeding, in the sense above defined, yet embracing the original partition cause reviewed by it, both of which are reviewable on this appeal from the decree of October 3, 1894 — came to an end. Thenceforward the partition cause remained in court on the original petition, but to be proceeded with, from that stage on, as disconnected from the bill of review, the bill of review, as to all subsequent proceedings in the partition cause, being clearly a ‘‘wholly independent proceeding;” and it thus becomes manifest that the decree of April 25, 1895, is not a final decree, from which an appeal can be prosecuted. This decree directs a partition to be made by the commissioners, if it can be fairly and equitably done, and, if not, they are directed to so report to the next term of the court. It also declares the dower to be subsisting, unbarred, and appoints commissioners to assign it. Obviously, this is a mere interlocutory decree. Code of 1892, § 3112.

Mr. Freeman says (Freeman on Co-tenancy and Partition, §519): “ Neither the interlocutory judgment at law nor the first decree in chancery is final; it cannot, therefore, be corrected by a direct appeal. The parties must wait until the final decree. ’ ’ And wbat that final decree is, is shown in § 527, note 3. Mr. Freeman states that there is legislation in Texas allowing appeals from the interlocutory judgment or decree (§519), and there is such legislation in other states, but none in this state, except § 34, code 1892, relating to interlocutory decrees generally.

In the absence of legislation, the true rule is announced in Gudgell v. Mead, 40 Am. Dec., p. 122: “In partition proceedings, both at law and in equity, there are two judgments and decrees— the one interlocutory and the other final. The first is quod partitio fiet, inter partes de tenementis, upon which a . . . commission goes, commanding that partition be made, and, upon the return of this . . . commission executed, if the proceedings are approved by the court, the second judgment is given — ■ quod partitio firma et stabilis in petpetuum teneatur. This is the principal judgment, and, before it is given, no writ of error does lie.” See, also, the authorities collected in 60 Am. Dec., note at p. 434, par. 11, and 2 Enc. of PI. & Prac., p. 144, par. 31; 1 Black on Judgments, §39. This appeal from this interlocutory decree was not granted by the chancellor “to settle the principles of the cause, or to avoid expense and delay,” under § 34 of the code of 1892. The clerk has no power to grant such an appeal. Sections 34 and 59, code of 1892, and Holliman v. Dibrell, 51 Miss., 96.

We cannot, therefore, take cognizance, on this appeal from this interlocutory decree, of the question of improvements involved in the partition proceedings.

The appeal from the decree of April 25, 1895, is, therefore, dismissed.

Decree accordingly.