Gray v. Ames
77 N.E. 219
Ill.
1906
Check Treatment
Mr. Justice Wilkin

delivered the opinion of the court:

The points raised by this appeal turn upon the question as to whether or not the decree entered on June 20, 1902, was final. In Mills v. Hoag, 7 Paige’s Ch. 18, (31 Am. Dec. 271,) it is said: “Chief Justice Savage defines a final decree to be the last decree which is necessary to be entered to give to the parties the full and entire benefit of the judgment of the court.” A final decree is one which fully decides and finally disposes of the entire merits of the case. Some other order or decree of the court may be necessary to carry into effect the rights of the parties or some incidental matter may be reserved for consideration, which decision either one way or another cannot have the effect of altering the decree by which the rights of the parties have been declared. A decree is final even where, as a mere incident to the relief granted, it directs a- reference to. a master to state an account. Where accounts are to be settled between the parties and the decree contains an order of reference by which the accounts are to be stated according to certain principles fixed by the decree, such order of reference will not have the effect of rendering the decree interlocutory; but where the chancellor fails to fix the principles by which the accounts are to be stated and judicial action on his part is contemplated and necessary, or where some equity other than that involved in the accounting remains for further adjudication, then such decree is interlocutory, unless the status of the account or other matter to be thereafter determined is apart from the equities involved. 13 Am. & Eng. Ency. of Law, (2d ed.) 27-30; Myers v. Manny, 63 Ill. 211; Hunter v. Hunter, 100 id. 519; Allison v. Drake, 145 id. 500.

The decree of June, 1902, provided that appellee was entitled to the relief as prayed in her bill, and directed that conveyance of the real estate in question should be made by appellant upon the delivery to him of the warehouse receipt for the piano and desk, and that further payment be made to him of the $293.30, the proceeds of the sale of personal property, less certain amounts to be thereafter ascertained, and the cause was referred to a master to ascertain these amounts. While it is true the basis upon which the account was to be stated was stated in that decree, yet it was impossible, from the very nature of the unascertained account, to fully and definitely decree an absolute specific performance of the alleged contract. The decree was not complete in itself, and required further judicial action on the part of the chancellor to give it effect to grant the relief sought. The reference to the master was not for the purpose of executing or carrying out the decree, but to ascertain facts upon which the final decree was to be based. If no other action had been taken after the rendition of that decree it would have been of no avail to appellee. She could not have-enforced it because it was not complete in itself. In other words, it did not determine all of the equities in the case, but left some of them to be subsequently judicially determined upon the master’s statement of the account. The original decree was therefore interlocutory, and not final, and the appellant was not required to appeal from it. Caswell v. Cumstock, 6 Mich. 391; 13 Am. & Eng. Ency. of Law, (2d ed.) 31, and cases cited under note 2.

On May 21, 1903, there being only an interlocutory decree entered, and pending the report of the master, the court, having jurisdiction of the person of the parties and of the subject matter of the suit, entered an order dismissing the case. There can be no question that it had full authority and jurisdiction to enter that order, which had the effect of not only dismissing the action but also of setting aside the interlocutory decree of June 20. On May 4, 1904, after twelve terms of court had elapsed, the court attempted to re-instate the cause and approved the master’s report. This it clearly had no power to do. In the case of Tosetti Brewing Co. v. Koehler, 200 Ill. 369, following many previous decisions of this court, we held that after the term had elapsed a decree may be corrected, on motion, in matters of form or mere clerical errors or misprision of the clerk, but the court is without power to change the decision or to set aside, -vacate, modify or annul the decree; that no error of law of any kind will justify revising or annulling a decree at a subsequent term in a summary manner on motion, but relief against it must be obtained by appeal or writ of error, if the error is apparent on the face of the record, and if not, by bill of review or bill to impeach the decree for fraud or other similar cause. The same rule applies to this suit which has been dismissed by the court. After the expiration of the term the court is without authority to enter an order reinstating the cause, and thus re-invest itself with jurisdiction of the person and subject matter of the suit. The suit having been dismissed, the order of May 4, 1904, attempting to re-instate it, and the decree entered upon the report of the master, were null and void and without binding force and effect.

The decree will be reversed, and as no further proceedings can be had in the court below the cause will not be remanded.

n , Decree reversed.