King v. Harrington, 35 App. D.C. 111

King v. Harrington

35 App. D.C. 111 | D.C. | 1910

Mr. Chief Justice Shepard

delivered the opinion of the Court:

At the threshold of the case lies the question whether the decree is a final one. A decree may be final in the sense that it may be appealed from, though not final in the strict technical sense of the term. If it dispose of all questions within the *115pleadings, and nothing remains but to adjust an account between the parties in the execution of the decree, it is final. Winthrop Iron Co. v. Meeker, 109 U. S. 180 — 184, 27 L. ed. 898 — 900, 3 Sup. Ct. Rep. 111. But if the reference is for a judicial purpose, as to state an account between the parties, upon which a further decree is to be entered, it is not final. McGourkey v. Toledo & O. C. B. Co. 146 U. S. 536—545, 36 L. ed. 1079—1083, 13 Sup. Ct. Rep. 170; and cases cited. The present case seems to be of the latter character. It will be remembered that the order of reference directs the auditor to take evidence as to the affairs of the partnership (that had been found to exist), and to report the same to the court; the cause is continued for that purpose. The duties required of the auditor are judicial in their nature as well as ministerial. It may be that, after the taking of the testimony, the question of the partnership may be presented in a different light. If so, there will be nothing to prevent the remodeling of the decree on final entry. The decree differs in this respect from that in Winthrop Iron Co. v. Meeker, 109 U. S. 180, 27 L. ed. 898, 3 Sup. Ct. Rep. 111, on which appellant relies. The doctrine of the Supreme Court of the United States as regards the finality of decrees is rather more strict than formerly. See McGourkey v. Toledo & O. C. B. Co. 146 U. S. 536-543, 36 L. ed. 1079-1083, 13 Sup. Ct. Rep. 170, and cases reviewed therein. In Gilbert v. Washington Beneficial Endowment Asso. 10 App. D. C. 316 — 334, upon which appellant also relies, the decree vacated a conveyance under which Gilbert claimed, ordered the proceeds of the property in the hands of receivers, before appointed, to be held for the payment of certain certificate holders of the grantor in that conveyance, and referred the matter of ascertaining said claims and their respective priorities, to the auditor. The appellant was interested in maintaining the conveyance that had been vacated, having no interest whatever in the distribution of the proceeds of the property after it was taken from him. The court overruled a motion to dismiss, saying that, as far as the appellant was concerned, the decree was *116as final as it could be. The appeal was nevertheless dismissed in the Supreme Court because the decree was not final. 173 U. S. 701, 43 L. ed. 1185, 19 Sup. Ct. Rep. 877. In obedience to that decision and others cited, we are constrained to hold that the decree is not final, and that this court had, therefore, no jurisdiction of the cause in its present stage. Metzger v. Kelly (present term) 34 App. D. C. 548. If there be merit in the case of appellant, he will have the benefit of the same on appeal from the decree when made final.

■ The appeal must be dismissed, with costs. It is so ordered.

Dismissed.