48 Tenn. 534 | Tenn. | 1870
delivered the opinion of the Court.
The first question to be decided in this cause is, whether the decree pronounced on the 10th of Sept., 1868, was a final decree, or was it an interlocutory decree. After stating the facts, which appeared to the Chancellor to be conclusive of the case, the decree proceeds: “His Honor is therefore pleased to order, adjudge and decree, that the said Alexander Mathis and E.
, In the case of Delap v. Hunter, 1 Sneed, 101, the Court say: “A decree is final when all the facts and circumstances material and necessary to a complete explanation of -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, finally to determine between them according to equity and good conscience.” Barb. Ch. Pr., 330; 8 Wend., 224. “A decree which disposes of the whole merits of the cause, leaving nothing for the future judgment of the Court in the case. which will make it necessary to bring it again before the Court for final decision, is a final decree.” 8 Paige, 18.
Upon these authorities, we are constrained to hold, that the decree of September 10th, 1868, was final. All the facts and circumstances material and necessary to a complete explanation of the matter in litigation, were before the Court; and upon these facts and circumstances, the rights of the parties were determined. The costs of the case were disposed of, and nothing left but to ascertain the exact amount of the balance due to complainants in the cross bill, which was merely a matter of clerical calculation. The ascertainment of this balance by the Master rendered no other decree necessary, except the final judgment awarding execution. As soon as it was ascertained and confirmed- by the Court, it became the amount for which a decree had' already been made. The decree was, therefore, final, and could not be examined by the Chancellor at a subsequent term, and cannot be examined here, as it was not appealed from, and is not here by writ of error.
The next question is as to the correctness of the de
In the view that the last named decree was final, the decree of March 5th, 1869, was erroneous. The only-power that was left to the Chancellor was. to pass upon the report of the Clerk and Master. Upon the confirmation of the report the decree of September 10th, 1868, was in a condition to be'. fully executed by the awarding of an execution. The decree of March 5th, 1869, will be reversed, and the cause remanded.
On a motion for writ of error and petition to rehear, Nicholson, C. J., delivered the following opinion of the Court:
At a former day of the term it was held by the Court that the decree made by the Chancellor at the September Term, 1868, settled the rights of the parties, and that at the subsequent term, in March, 1869, when the report of the Clerk and Master on the account ordered, was made, it was not competent for the Chancellor to Reverse his decree made at the previous term; that he could do no more than confirm the report of the Clerk and Master, and award execution according to the the decree of the September Term, 1868.
It was also held by this Court, that, as the cause was in this Court by appeal from the decree of March,
The defendants in the cross bill who are the complainants in the original bill, now move for a writ of error to bring before us the decree of September Term, 1868, to the end that said decree may be re-examined upon its merits, and if there is error in it, that the same may be corrected.
The writ of error lies to this Court from the Chancery Court within two years after 'the judgment or decree. If the time is to be computed from the decree of September Term, 1868, the application is too late, and the motion must be disallowed. But if the time is to be computed from the decree at the March Term, 1869, the motion is in time, and must be allowed as a matter of right.
By the Code, 3176, a writ of error lies from the final judgment of the Chancery Court to the Supreme Court, in all cases where an appeal in the nature of a writ of error would have lain.
By section 3172, an appeal in the nature of a writ of error lies at the instance of either party, from the judgment or decree of the Court of Chancery, upon the same terms and subject to the same regulations, as an appeal from similar judgments or decrees.
By section 3155, either party, dissatisfied with the judgment or decree of the Chancery Court, may appeal to the Supreme Court, and have a re-examination in that Court of the whole matter of law and fact, appearing in the record.
It is clearly deducible from these several provisions of the Code, that the appeal, or appeal in error, or writ of error, cannot be demanded as a matter of right, until the final judgment or decree is rendered; but, in the discretion of the Chancellor, an appeal or appeal in error, may be allowed after a judgment or decree, which is final, so far as settling the rights of the parties is concerned, but before there is a final judgment or decree upon an account, sale or partition, ordered. In the case before us, at the Sept. Term, 1868, when 'the rights of the parties were finally settled, and an account ordered to be made to the next term, the parties had no right to demand an appeal or appeal in error, from that decree. An application for such appeal or appeal in error, might or might not have been allowed, in the discretion of the Chancellor.
It appears that in the progress of the original suit, defendants A. Mathis and E. S. Mathis, as executors of Alexander Mathis, the original defendant, filed their . cross bill, making Meek and Simpson, the complainants in the original bill, defendants. They make the answer of Alexander Mathis to the original bill part of their cross bill, in which it is alleged that said Alexander Mathis had a mortgage on _ the mills, for a balance of the purchase money of $500, due from Elias Presnell, to whom the mills were sold; that complainants Meek
We have already determined in the opinion heretofore given, that the decree at the March Term, 1869, was erroneous. We therefore, reverse that decree, and remand the cause, that the decree of September, 1868, as herein modified, may be executed.
The complainants, Meek and Simpson, will pay all the costs in this Court and in the Court below, except the costs arising from the garnishment cases of Wayne and Stubblefield, which 'will be paid by them.
See Abbott v. Fogg, post —; Harrison V. Farnsworth, post —.