14 Wend. 539 | Court for the Trial of Impeachments and Correction of Errors | 1835
The following opinion was delivered ;
The first question is whether this is a final decree between the parties, from which an appeal may be brought in two years; or whether it is interlocutory, from which an appeal must be brought within 15 days ?
The case of Kane v. Whittick, 8 Wendell, 219, contains nearly all the authorities on this point. In that case Whit-tick filed a bill, charging that an absolute deed executed by his grand-father was intended as a mortgage, and prayed a discovery and account. Issue being joined, the chancellor decreed that the deed was intended as a mortgage, and directed an account to be taken before a master. The decree was made in 1828. The parties appeared before the master;
On the hearing, the defendants below (the appellants in this court) did not appear. They appealed, and their appeal was dismissed, because the final decree in 1829 was taken by default, and no appeal was made from the interlocutory decree of October, 1828, within 15 days. Mr. Justice Sutherland and Mr. Senator Beardsley delivered opinions, stating the principles of that decision. They both refer to Harrison’s Chancery, and adopt the definition there found oí & final and an interlocutory decree: “ A decree is final when all the circumstances and facts material and necessary to a complete explanation of the matters in litigation are brought before the court, and so fully and clearly ascertained on both sides, that the court is enabled, upon a full consideration of the case made out and relied upon by each party, finally to determine between them according to equity and good conscience.” Sutherland, J. remarks that a decree does not become final because it settles one or more of the material questions involved in the case, if any other material fact or question remains undisposed of. Senator Beardsley remarks of the case before him, that the decree of 1828 was not a final decree within the meaning of the statute ; it could not be enrolled; it did not settle all the rights of the parties; accounts were to be taken, and equities were reserved until the coming in of the master’s report. In that case the main point had been decided, to wit, that the deed absolute on its face was really but a mortgage; but the amount to be paid by one to the other, could not be settled until the coming in of the master’s report. In this case all the principles have been settled between the parties: that partition shall be made, and the mortgages foreclosed by a sale of the premises? that the liens upon the property shall be paid by the master from the proceeds of the sale, and the balance brought into court—the master to make a report, upon which a subsequent decree was necessary to be made. Can there be a decree subsequent to a final decree ? The term final purports that it is 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. The cases of Travis v. Waters, 12 Johns.
According to the old definition of a final decree, the decree in these causes was but interlocutory, except in the bill of review. That was dismissed, with costs. I can see no reason why the decree, so far, might not be enrolled; and in that suit there was no reference to a master—no fact to be ascertained; the bill was dismissed and costs awarded; that was final—nothing more was to be adjudicated between the parties. With the exception just stated, the decree in these causes was in my judgment interlocutory;' and an appeal, to be effectual, must have been brought within fifteen .days after notice thereof was given to the party appealing. This brings me to the second question in the case.
Had the appellants notice of the decree of 12th September, 1834, more than fifteen days before the 25th of October, when the appeal was filed ? It is not pretended that any written notice has been given to the appellants, but it is contended that the notice mentioned in the statute means knowledge ; and the case of The North American Coal Co. v. Dyett, 4 Paige, 273, is cited to sustain that position. That was an appeal from a vice chancellor to the chancellor. The phraseology of the. statute under which that appeal was made is somewhat different from that which regulates the present proceeding. The statute regulating appeals from vice chancellors is as follows : s‘ Any 1 party complaining of any interlocutory or other order previous to a final decree made by any vice chancellor, may, within fifteen days after notice of such order, appeal therefrom to the chancellor.” Upon this statute» the chancellor decided in the above case, that where the appellant himself draws up and enters the order, he has
I am of opinion that the motion to dismiss the appeal be denied. Q
Motion to quash denied.