123 F. 389 | 7th Cir. | 1903
after stating the facts as above, delivered the opinion of the court.
It is often difficult to determine whether a decree is final or interlocutory; and for this reason, as is suggested in Forgay v. Conrad, 6 How. 201, 12 L. Ed. 404, care should be taken not to make what should be a mere interlocutory decree so operate as to be final and compel an immediate appeal before the actual termination of the litigation. In McGourkey v. Toledo & Ohio Central Railway Company, 146 U. S. 536, 13 Sup. Ct. 170, 36 L. Ed. 1079, a review is had of the authorities upon the question of decrees final or interlocutory merely, and the conclusion is reached (i) that a decree is final, though the case be referred to a master to execute the decree; (2) that a decree in admiralty determining liability for collision or tort, or in equity establishing the validity of a patent, and with reference to a master to compute and report damages, is interlocutory merely. The general rule is stated as follows:
“It may be said, in general, that if the court make a decree fixing the rights and liabilities of the parties, and thereupon refer the case to -a master for a ministerial purpose only, and no further proceedings in court are contemplated, the decree is final; but if it refer the case to him as a subordinate court and for a judicial purpose, as to state an account between the parties, upon which a further decree is to be entered, the decree is not final. Craighead v. Wilson, 18 How. 199 [15 L. Ed. 332]; Beebe v. Russell, 19 How. 283 [15 L. Ed. 668]. But even if an account be ordered taken, if such accounting be not asked for in the bill and be ordered simply in execution of the decree, and such decree be final as to all matters within the pleadings, it will still be regarded as final. Craighead v. Wilson, 18 How. 199 [15 L. Ed. 332]; Winthrop Iron Co. v. Meeker, 109 U. S. 180 [3 Sup. Ct. 111, 27 L. Ed. 898].”
This case has repeatedly been approved. Luxton v. North River Bridge Company, 147 U. S. 337, 341, 13 Sup. Ct. 356, 37 L. Ed.
The case of Forgay v. Conrad, supra, is chiefly relied upon to sustain this appeal. There it was ruled that:
“Where a decree decides the right to property, and directs it to be delivered up or sold, or a sum of money to be paid, and the complainant is entitled to have such decree carried into immediate execution, this is a final decree, from which an appeal lies.”
This is a leading case and has been approved by the court. Thomson v. Dean, 7 Wall. 342, 19 L. Ed. 94. But, as suggested in the McGourkey Case, “the opinion was based largely upon the ground that the decree not only decided the title to the property in dispute, but awarded execution,” and, further, that it had been generally treated as an exceptional one. The general rule is that a decree is not final unless, upon affirmance, nothing remains but to execute it (Grant v. Phœnix Insurance Co., 106 U. S. 429, 1 Sup. Ct. 414, 27 L. Ed. 237), and it must terminate the litigation between the parties on the merits of the case (Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. 15, 27 L. Ed. 73).
The decree in question is peculiar. It directs the delivery of the property forthwith, “in condition in which the same was on the 17th of May, 1894.” We cannot fully appreciate that it could be expected that, after eight years of use upon a railway, box cars and coal cars should be returned in their condition at the commencement of such use. The decree further provides that, in default of delivery, the receiver having the property in possession should account to the receiver claiming the property for its fair value on the 17th of May, 1894, and for its use and rental from that date. We take it that the accounting for use or rental was irrespective of the fact of delivery or nondelivery of the property under the decree. This further peculiar provision is found in the decretal order, that it should be regarded and treated as interlocutory, awaiting a'further report of the master directed by the decree. Of course, such statement is not conclusive, if the decree in fact determined finally the rights of the parties. Potter, v. Beal, 2 C. C. A. 60, 50 Fed. 860. But possibly it ought to be taken into account in case of doubt. The purpose of the intervening petition was not only to recover the possession of the property, but to ascertain an accounting with respect to the value of the use, and if possession could not be had, or if the property be deteriorated, for an accounting to determine and to recover for the value of the use and the value of the property, or the amount of its depreciation, a return being had. It will be observed that the case differs from that of Forgay v. Conrad in this: that here the prevailing party could not have execution of his decree. The decree is in the alternative, either to deliver or to account. In default of delivery, an accounting was directed, to be followed by a decree for the fair value of the property, so that it rested with the receiver in possession either to deliver the property or to ac
The appeal is dismissed.
