Johnson v. Everett, 2 Sarat. Ch. Sent. 51

Johnson v. Everett

2 Sarat. Ch. Sent. 51 | New York Court of Chancery | 1842

The Chancellor.

Upon a careful examination of the provisions of the decree appealed from, I am satisfied it is an interlocutory decree merely ; which the appellants had no right to appeal from after the expiration of fifteen days from the time when a copy of such decree was served upon their solicitor. The vice chancellor does indeed decide the question as to the invalidity of the conveyance from the judgment debtor of the complainants, to Everett and Kingsley, the appellants; and as a consequence of such invalidity he declares the existence of the lien of the judgments upon the lands which still remain in the hands of the appellants unconveyed; and that the debts and the costs in this court ought to be paid out of the proceeds of the property thus fraudulently conveyed. But no decree for the payment, either of the amount of the judgments or of the costs of the suit, is made; neither is the receiver directed to pay either debt or costs out of the proceeds of the property which is to be transferred to him under the decree. The case, therefore, cannot be distinguished from that of Kane v. Whittick, (8 Wend. Rep. 219,) where the court for the correction of errors held a decree of the chancellor declaring the rights of the parties merely, and directing an account in conformity therewith, but reserving the consequential directions, and the question of costs, until the coming" in of the report, to be a mere interlocutory decree ; which must be appealed from within fifteen days, or that the right to appeal from the same was gone. A decree never can be said to be final where it is impossible for the party in whose favor the decision is made ever to obtain any benefit therefrom without again setting the cause down for hearing before the court, upon the equity reserved, upon the coming in and confirmation of the report of the master, to whom it is referred to ascertain certain facts which are absolutely necessary to be ascertained be*639fore the case is finally disposed of by the court; or which the chancellor thinks proper to have ascertained before he grants any relief whatever to the complainant. But if thedecree not only settles the rights of the parties, but gives all the consequential directions which will be necessary to a final disposition of the cause, upon the mere confirmation of the report of the master by a common order in the register’s office, it is a final decree and may be enrolled at the expiration of thirty days; although the amount to which the complainant may be entitled under such decree is still to be ascertained upon a reference to a master for that purpose. Thus, in the ordinary case of a bill for the foreclosure of a mortgage, if the decree merely decides or declares the rights of the complainant by virtue of his bend and mortgage, and refers it to a master to compute and ascertain the amount due to him, reserving all further questions and directions until the coming in and confirmation of the master’s report, it is an interlocutory decree merely; as the complainant cannot obtain the benefit of his suit until he brings the cause on to be heard again upon the equity reserved and for further directions as to a sale of the mortgaged premises and the payment of his debt and costs but of the proceeds of such sale. But if the decree, in addition to the reference to the master to compute the amount due upon the bond and mortgage, proceeds further and gives the usual directions in such cases, that upon the coming in and confirmation of the report of the master, the premises shall be sold, and that the master who makes such sale shall pay the amount so reported due, together with the interest and costs, out of the proceeds of such sale, and directing the mortgagor to pay the deficiency reported due upon such sale, the decree is final ; although the mortgagor may have the right to except to the master’s report of the amount due. For the questions arising upon the exceptions to the master’s report, in such a case, are merely incidental to the carrying of the final decree in the cause into full effect.

The appeal in the present case not having been brought *640within the time limited by the statute for appealing from a mere interlocutory decree, must be dismissed, with the usual costs of fifteen dollars allowed by the rule as the costs upon a special motion.