Long v. Maxwell

59 F. 948 | 4th Cir. | 1894

FULLEE, Chief Justice,

after stating the facts as above, delivered the opinion of the court.

The decree of July 20, 1891, was, ,in our opinion, a final decree, terminating the litigation between the parties, and leaving nothing* to be done, except to carry it into execution. Bank v. Sheffey, 140 U. S. 445, 11 Sup. Ct. 755. The reservation for further directions simply related to such execution, and could not be availed of as rendering the decree less final, or leaving open points expressly decided when it was entered. If the decree was erroneous, the proper mode of correction was by rehearing or appeal. 2 Daniell, Ch. Pr. (4th Am. Ed.) 1368, 1577; Le Grand v. Whitehead, 1 Russ. 309; Lee v. Pindle, 12 Gill & J. 288.

The motion of September 7, 1891, for further time to the defendant to comply with the decree, and for an order of reference, was not the equivalent of an application for rehearing on the merits, and did not assume to be; and the order of the court thereon simply Suspended the execution of the deed until further order on hearing- in reference thereto. The decree of July 2oth granted the relief prayed, and directed specific performance, with costs. So far as the motion referred to the ascertainment of what, if any, amount of money was due “from plaintiff, to be paid before the execution of the deed provided for in the decree, and what other acts or obligations are to be performed on the part of the plaintiff antecedent to the execution of said deed,” those were matters brought forward by the defendant in his answer, and were disposed of by the conclusion reached. As to the contention over expenditures claimed to have been made by defendant subsequently 1o the contract, and in accordance therewith, a cross bill might have been necessary to affirmative relief, and none was filed; but, in any view, the decree precluded further question in that respect on this record. It is true that the decree required complainant “to perform on his part all the terms of said contract;” but that, while somewhat obscure in its wording, manifestly referred to allowing the defendant to retain the land debts referred to in the contract, and also one-twelfth mineral interest in the land, which could be secured by the terms of the deed, when approved by the court and accepted by the complainant. And when, after the lapse of more than a year from the time defendant’s motion was made, the complainant, moved for a decretal order to execute the decree, and that order, after hearing, was entered November 15, 1892, the order, by its very terms, was merely one in execution of the former decree, treating that as final. If an appeal had then been taken from the decree of July 20, 1891, it could not have been sustained, as more than six months had expired from that date. 26 Stat. 826, c. 517, §11.

The appeal before us, however, was not taken from this decree, but from the decretal order of November 15, 1892; and our attention is not called to, nor do we perceive, any error in the record arising upon the subsequent proceedings. Treating the distinction sometimes adverted to between a decretal order and a decree as unimportant, it may be conceded that, if error intervened in orders entered in the execution of a decree, an appeal would lie. Hill v. Railroad Co., 140 U. S. 52, 11 Sup. Ct. 690. But there is no such state of case here, and the errors assigned relate solely to matters embraced by the decree of July 20th, and that adjudication cannot be reviewed on this appeal. Bank v. Sheffey, supra.

The circuit court had itself no power to grant a rehearing at November term, 1892, (Equity Rule 88;) and this appeal cannot be treated as taken from the decree of July 20th, not only because it was not so taken in terms, but because it could not properly have been allowed under the judiciary act of March 8, 1891. Decree affirmed.