8 Wend. 219 | Court for the Trial of Impeachments and Correction of Errors | 1831
The following opinions were delivered :
The respondent contends preliminarily that this appeal cannot be sustained, for the following reasons: I. That so far as it relates to the decretal order of October, 1828, it was not made in due season, that being an interlocutory decree or order, for which no appeal can be made after the expiration of fifteen days from the time it was entered; and 2. That the final decree of August, 1829, having been obtained by the default of the appellants, cannot be appealed from by them.
A decree is said by Mr. Harrison, 1 Harrison, Ch. 420, to be interlocutory when it happens that some materiahcircumstance or fact necessary to be made known to the court is either not stated in the pleadings, or is so imperfectly ascertained by them that the court is unable to determine finally between the parties, and therefore a reference to, or an inquiry before a master, or a trial of the facts before a jury, becomes necessary to remove the doubts occasioned by that defect. The court in the mean time suspends its final judgment until, by the master’s report, or the verdict of the jury, it is enabled to decide finally. 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
The analogy between the case of Travis v. Waters and the case at bar, so far as the question which we are now considering is concerned, is very striking. The decree of October 1828, in this case, decided the main point in controversy between the parties, to wit, that the conveyance from Whittick to Schelluyne of January, 1772, was a mortgage, and not an absolute deed; but it left the amount for which it was given,
Although the decree of October, 1828, established the liability of the defendants to account on the footing of mortgagees in possession, it left the amount for which they would finally be held responsible unascertained. It was perhaps impossible at that time judicially to say in whose favor the final decree would be; it depended upon the amount of the rents and the profits of the lot, over and above the support of Henry Whittick, the idiot, and the amount of payments made by the Whitticks to old Mr. Schelluyne. There certainly were very material facts to be determined before the making of the final decree in the cause, and the reference to the master was for the purpose of ascertaining those facts. The decretal order of October, 1828,-therefore .not being the final decree in the cause, and not having been appealed from within 15 days, cannot now be reviewed, unless it opened by the appeal from the final decree made in August, 1829.
To the appeal so far as it relates to the decree of August, 1829, it is objected that it will not lie, because that decree , was entered by default, the defendants below, the present appellants, not having excepted to the master’s report, nor appeared to oppose its confirmation. It has been repeatedly decided jn this court, that no appeal or writ of error would lie from a decree of judgment of the court of chancery or the su
This subject was again considered by this court in Campbell v. Stakes, 2 Wendell, 137, where it was decided that it could not be alleged for error in this court, that in a cause in the court below, where there were two issues joined, the jury had passed upon only one of them, it appearing that the question had not been brought before the supreme court on a motion in arrest of judgment, or otherwise; and the chanceller, after citing and noticing the cases which have been referred to, says,
From this review of the' case it appears, I. That this court has uniformly refused to entertain a writ of error or appeal from a judgment or decree, entered by default in the court below; the only exception is the case of Cheetham v. Tillotson, 5 Johns. R. 432, in which the objection was not raised in this court; 2. That this court will not permit a point to be
Let us now consider the bearing and operation of these principles upon the case before the court. The appeal, it will be recollected, is from the interlocutory decree of October, 1828, as "well as from the final decree of August, 1829, and was filed on the 6th day of October, 1830. If the interlocutory decree only had been appealed from, the objection would have been unanswerable, that the appeal was not brought within fifteen days after the entering of the decree. The statute is peremptory, that all appeals, except those from final decrees, shall be made within 15 days after the making of the decree or order appealed from. 1 R. L. 184, § 9. If the appeal had been from the final decree only, without any reference to, or connection with the previous interlocutory decree, it would have been dismissed,-on the ground that the decree appealed from was entered by default, the appellants not having sought or asked the opinion or judgment of the court below upon their case. Can the circumstance, then, that both decrees are appealed from, give force and efficacy to the appeal, when an appeal from neither, disconnected from the other, could be sustained ? or can the interlocutory decree be used for• the
But if the appellants had excepted to the master’s report, and opposed its confirmation upon the final hearing, instead of suffering the decree to pass by default, I should still entertain very serious doubts whether an appeal from such final decree would open for consideration the prior interlocutory decree of October, 1828. I accede fully to the rule as laid down by Mr. Justice Radcliff, in Le Guen v. Gouverneur & Kemble, 1 Johns. Cas. 498, “ that by an appeal from any interlocutory or final decree, all the proceedings in the cause anterior to the decree, are necessary to be presented to this court, and proper for its consideration. It may frequently become indispensable to reverse, alter or modify the previous proceedings in order to make them consistent with the decree to be pronounced. All antecedent matter is therefore necessarily before the court, and subject to its control.” The reason here assigned for the rule shows its extent and limitation; all antecedent proceedings must be brought up, and may be considered by the court, because it may become indispensable to reverse, alter or modify them, in order to make them consistent with the decree to be pronounced. When the decree to be pronounced, upon the matter distinctly and appropriately appealed from, requires the modification of some previous order, in order to make it consistent with such decree, this court must, from the necessity of the case, have a right so to modify it. In Le Guen v. Gouverneur & Kemble, the chancellor had ordered a feigned issué, to try the question of fraud. After such order was made, the parties agreed to submit to the chancellor the question whether the respondents were not precluded from raising the question of fraud, in consequence of not having availed themselves of it as a matter of defence, in an action at law, which had previously been brought against them by the
But independently of the statute, and upon general principles, applicable to the course of legal proceedings, a party ought not to be permitted to lie by, and subject his antagonist to the expense and delay which frequently attend a reference, 'and then, upon the coming in of the master’s report, to object to the principles upon which the reference had been directed to be conducted. In Atkinson v. Manks, 1 Cowen, 709, I observed that the appellant was precluded from objecting to the order of reference, by having acted under it; that if that order established principles, or gave instructions to the master, .which he thought erroneous, he should have appealed from it at once, instead of prosecuting the reference. After having tried the practical operation of those principles and instructions upon his rights, it is to late- for him to object to them. Any
But I do not desire to put the decision of .the question now before the court upon the ground which I have last been considering. The first ground seems to me to be conclusive, and I have adverted to the other because the general considerations involved in it appear to have a direct bearing upon the question immediately before the court, and tend to mark the strength and extent of my views in relation to it. I think the preliminary objection is well taken, and that the appeal should be dismissed on that ground.
By the act organizing this court, it is enacted that all errors happening in the court of chancery, the supreme court, or court of probates, shall be redressed and corrected by this court; and that all persons aggrieved by any sentence, judgment, decree or order of the court of chancery, may appeal from the same, or any part thereof, to this court, and that the court, if the appeal be from the court of chancery, shall require the chancellor to assign the reasons of such sentence, judgment, decree or order, and shall have full power to examine, hear, and finally determine all such appeals from the said court of chancery, and all matters concerning the same, and to reverse, affirm, or alter such sentence, decree -or order,
If this rule is to be enforced in every case in which the defendant may omit to appear at the final hearing, be the cause of his non-appearance ever so urgent, or his excuse ever so reasonable, it appears to me, great injustice may be done to suitors who may have just and reasonable cause for the comse they may have pursued in the matter. In the case now under consideration, for instance, there was no manner of reason ' or cause whatever, for the appearance of the defendant in the court below at the making of the final decree of the chancellor. The complainant had presented his bill, going fully into the merits of his claim, and the defendants had answered the complaint. ' In addition, a mass of testimony, occupying 29 pages of the case, was produced, and the cause was submitted to the chancellor upon the pleadings and proofs and the written arguments of counsel. Every thing that could be said or proved on the merits of the case, was before the chancellor from August to October, 1828, when he made his first decree, and gave his opinion and reasons for such decree ; by which the whole question in controversy is settled. The main question between the parties was, whether the deed from Whittick to Van Schelluyne was an absolute conveyance, or only a mortgage, "and the chancellor- decreed it to be a mortgage. He then decreed further, that Rogers and-Sherwood, who had purchased the property from the appellants, should remain in undisturbed possession of the premises; that the master should state an account, charging the complainant with the bond of $564, with interest, and charging the defendants with -
It is clear, therefore, to my mind at least, that every subject matter in controversy was settled by this decree; not a single item was left unattended to ; and as it is presumed all the defendants appeared before the master and exhibited their testimony in the cause submitted, they of course knew the result the master had arrived at in stating the account. They knew also, that inasmuch as the chancellor had designated the several items of charge and credit, that there was no manner of probability, and that they had no reason from the circumstances of the case to believe, that from any thing they could object, this opinion, after having been deliberated on for two months, from August to October, 1828, would be changed or altered. The main question had been definitely settled, that the conveyance was a mortgage, and it was on the reversal of this decision that the whole mattter in controversy turned ; they could, therefore, only hope for relief by an appeal to another tribunal. Under these circumstances, of what use «would it have been for them to appear at the final decree ' on the master’s report ? Certainly none.
The final decree, confirming the report of the master, was made on the 29th of August* 1829. From the opinion of the chancellor I infer, that he considered the whole matter in controversy settled by his decree of October, 1828, as the reasoning of the opinion appears to be founded on the pleadings and evidence before him at that time; he thus embodies the decree, substantially, in his opinion, that the deed from Whittick was only intended by the parties as a security for the payment of money; that there must be a reference to a master to take
Several cases were cited by the counsel for the respondents as authority for the motion to dismiss the appeal. They differ, however, from the. case under consideration, in some respects at least. Sands v. Hildreth, 12 Johns. R. 493, was a final decree, and the only decree on the merits of the case ; while in the case before us, the final decree was not on the merits, but on the report of the master. In Jaques v. The Methodist Church, 17 Johns. R. 548, it was held that an appeal from a final decree in a cause opens for the consideration of the court all prior or interlocutory orders or decrees in any way connected with the merits of the final decree. A final decree is that which is made when all the material facts in the cause had been ascertained, so as to enable the court of chancery to understand and decide on the merits of the case. There is nothing different between this definition of a final decree and the facts and circumstances upon which the chancellor grounded his decree of the 17th October, 1828 ; that dedcree ought, therefore, to be considered as final, on the merits of the question. In the case last cited, Spencer, justice, observed : This court, (viz. the court of errors,) considers a decree final which is made when all the material facts in the cause had been ascertained, so as to enable the court to understand and decide upon its merits. There are some interlocutory orders that must be appealed from in fifteen days, such as an order for an issue, and others not necessary to particularize.” I think I may safely conclude that the judge, from whose opinion I have quoted, would hardly have decided that the decree of the 17th October, 1828, was an interlocutory order or decree. In Campbell v. Stakes, 2 Wendell, 144, the question in controversy had not been brought before the supreme court by motion in arrest of judgment, or otherwise, and therefore is no authority in the present case. In Houghton v. Starr, 4 Wendell, 175, the question presented on the record before the
In Travis v. Waters, 12 Johns. R. 508, it was held that 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 by the pleadings of both sides, that the court is enabled from them to collect the respective merits of the parties litigant, and upon full consideration of the case made out and relied upon by each, determine between them, according to equity and good conscience. Here, again, is a definition of a final decree which meets the case under consideration in every possible point in which it can be viewed. All the material circumstances and facts were before the chancellor when he made his decree of October, 1828, and so fully and clearly were they explained to his satisfaction, that he had no difficulty in determining- between the parties litigant, as he viewed the matter, in equity and good conscience. In Atkinson v. Manks, 1 Cowen, 700, Sutherland, justice, observed: “ It was contended that this decree was interlocutory, not final, and that the appeal, therefore, should have been entered within fifteen days after the making the decree.” By that decree, the chancellor determined the bill of interpleader to have been properly filed; according to my view of the case, that was the material, and only material point, so far as the complainant was concerned, which the court was called on to decide, and the moment the decree was pronounced, the object was obtained which the complainant, sought by his bill. In accordance with this opinion, I think I am authorized to hold, that by the decree of the 17th October, 1828, the chancellor having decided that the deed from Whittick to. Van Schelluvne was a mortgage, he decided the only material point in the cause, so far as the complainant was concerned; and accordingly, the moment that decree was pronounced, the material object was obtained which the complainant sought by his bill.
The hurried manner in which I have been compelled to examine these cases, and prepare this opinion, must be my apology, if I have been led into any error as to the true bearing of any of the authorities cited or commented on; but in this I
This court is directed by the statute to hear and finally determine all appeals from the court of chancery, and to reverse or affirm all such decrees or orders appealed from, and to make such other order thereon as equity and justice shall require. We proceed, therefore, in accordance with this provision, to reverse or confirm the decrees of the chancellor when' appealed from; and is not a decree by default as much the decree of the court of chancery as though it was made after argument, or on the pleadings in the cause ? I can perceive no difference. 1 doubt the propriety of the rule contended for by the respondent in any case, and particularly in the present. It is in fact an invasion of the rights of the citizens of this state to say, that for the omission of a mere form of proceeding, they shall be precluded from the privilege of appealing to this court of the last resort—a court which I trust the people will never consent to part with. I think, from the best consideration I have been able to give the subject, that the motion to dismiss the appeal should be denied, and that the cause should be permitted to proceed.
It seemed to be conceded on the argument, that if the decree of August, 1829, had not been taken by default, and had been appealed from, it would necessarily have drawn into consideration the merits of the preceding decree, on the authority of Jaques v. The Methodist Episcopal Church, 17 Johns. R. 548.
If there is any doctrine well established by adjudications in „ this court, it is that a decree taken by default in the court below is not the subject of an appeal; nor will this court lend its aid to redress real or imaginary grievances, to which the attention of the court below has not been called by the party who seeks redress. These questions have so often and so recently been before the court, that it cannot be necessary to reiterate the reasons that have been assigned, but merely to refer to the authorities which sustain the proposition contended for. Sands v. Hildreth, 12 Johns. R. 493. Gelston v. Hoyt, 13
This court is strictly of appellate, not of original jurisdiction, and a contrary doctrine would add greatly to its legal attributes. The question then is, was the decree of October, 1828, an interlocutory or a final decree ? If interlocutory, it should have been appealed from in 15 days; if final, the present appeal is in due time, and must be sustained. It was not pretended that this was so far final as to be the subject of an enrolment under the statute, but it was contended that, as it settled the leading principles of the case, it was in its nature substantially a final decree. It appears to me that it was not such a decree as the statute contemplates as being final in the cause. The very best reasons exist for keeping up the distinction between interlocutory and final decrees. Each is the subject of appeal; but if a party wishes to appeal from an interlocutory order, good faith would seem to require that he should enter his appeal at once, and not put the party to expense and delay in proceeding under such order, where an appeal is intended to be brought. The impropriety of sustaining an appeal from an order where the party has in a measure admitted its correctness by acting under it, seems to be apparent. In the present case, had the appellants appealed directly from the order of October, 1828, the present respondent would not have been put to the expense and delay of a protracted and expensive reference.
It appears that the appellants were so far willing to acquiesce in the principles established by the chancellor, as to ascertain how the balance would stand on taldng the account, and then on finding it against them, to appeal. Still, the party has a right to wait till the final decree is pronounced, and then, by an appeal from that decree, bring up antecendent orders for reversal or modification. But if he wishes to avail himself of this right, he must not suffer the final decree to be taken against him by default.
The decree of October, 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
On the whole, I am for dismissing this appeal. I see nothing in the policy of the law to induce this court to retain it, or in the merits to warrant the court in straining for reasons to sustain the appeal.
I understand it to have been admitted on the argument, that if the appeal be properly brought from the final decree, it brings up the decretal order directing a reference, and settling the principles upon which it should be conducted; and if not, that there can be no appeal. The only question, therefore, presented by this preliminary objection is, whether the appeal is properly brought from the final decree.
Analogous questions have frequently been decided in this court, but this precise question has never been presented. In all cases where .this court has dismissed a writ ef error or an
The reason urged for the dismissal in these cases was drawn from the constitution, which requires the court below to assign the reasons of its judgment or decision. This is an impossibility where the merits of the cause have- not been presented to the court. This court could not, therefore, acquire jurisdiction of the cause, and solely on account of the default of the party seeking its aid. This case differs from all those, and the principle that governed the decision in them has, in my view, no application to the facts in this. The appellants did appear at the hearing on the merits in this cause, and did . present to the chancellor the reasons which they assign for error here. That officer has informed us of the reasons of his decision, and his opinion proVes that the cause was fully dis
It is true, the appellants did not appear when the master’s report came in and the final decree was made. Why should they 1 What necessity or use was there for their appearance ? The master had governed himself in making his report by the principles prescribed by the chancellor, and the appellants had no objection to make to the manner in which he had executed his trust. They contested the principles prescribed to him, and not the report made in accordance with them. The case presents the question whether a mere bodily personal appearance in the court room, and in answer when the cause is called on the final hearing, is requisite to enable a party to bring into this court a cause which has been strenuously contested and fully discussed in the court below. To come into this court is matter of right; it is secured by the constitution and the laws ; there is no restraint upon its exercise and enjoyment, except what is created by the appellate character of this court, and the constitutional requirement that the court below shall assign to this the reasons of its judgment or decree. If a party by his own default withdraws the merits of his cause from the consideration of the court below, and thereby renders impossible a compliance with that constitutional requirement, he waives his right to have the judgment or decree of the inferior tribunal reviewed in this court. His own act has rendered such review impossible within the intend
It is true a party may appeal from every interlocutory order of the court of chancery, whereby he may be aggrieved, but there is no constitutional or statutory provision that he shall so appeal or be precluded from appealing from the final decree ; nor is there any such provision that a party shall appear at the final hearing, if he have done his duty in the previous stages of the cause, to entitle, him to the exercise of his right to come into this court. What practical utility can attend such an appearance ? If the appellants in this cause had appeared, they could not have had permission to re-argue their cause. Its merits had been fully discussed and decided. All they could have been allowed to do would have been to object to the proceedings subsequent to the decretal order. In case of an appearance, the reasons of the chancellor would have been precisely what they are now. What then would have been gained by an appearance in point of jurisdiction ? I am not awai’e that the decision of this preliminary question can be important to the interests of the parties in this case, but in my view it involves a question of constitutional and legal right. Believing that the appellants have satisfied the requirements of the constitution and the practice of this court, and that none of its decision forbids us to entertain this appeal, my opinion is, that the motion to dismiss should be denied.
The appellants cannot assign for error or avail themselves of any thing that occurred in the cause after the decretal order, because by their non-appearance they waived all objections to the subsequent proceedings.
On the question being put, Shall this appeal be dismissed ? the members of the court expressed their opinions as follows:
In the negative—Senators Allen, Bronson, Dodge, Lynde, Mather, Maynard—6.
Whereupon the appeal was dismissed.