85 Pa. Super. 169 | Pa. Super. Ct. | 1925
Argued May 4, 1925. The confused state of this record is due to a failure to comply with the equity rules in force at the time. (Rules of January 15, 1894 — 159 Pa. xxv — October 5, 1900, and July 6, 1911.)
Following the action of the Supreme Court in this case (
The equity rules always contemplated two decrees: a preliminary decree or decree nisi, and a final decree. Before the rules of 1894 substituted a trial before a judge for a reference to a master it was the master's duty to prepare and submit a form of decree with his findings of fact and of law; and by Rule 69 a like duty was imposed on the referee where the case was referred to him. Since the rules have provided for a trial before a judge a decree nisi must be filed by him; and it is not until the decree nisi, or the decree submitted by the master or referee, has been passed upon by the court, upon exceptions filed, that the case is ready for a final decree.
In this case no form of decree was prepared, submitted or filed by the master or self-styled "referee." He made findings of fact and of law to which exceptions were filed, but he failed to comply with the equity practice as respects a decree, and while the court might have prepared a decree nisi from his findings (Armour Leather Co. v. Alexander,
We are of opinion that the first serious error in the case was the failure of the master to prepare and submit a decree, similar to the decree nisi usual in ordinary equity trials, and that until this was done by the master or the court, and opportunity was given for exceptions to it the case was not ripe for a final decree, and that the proceedings thereafter were nugatory and not sufficient to sustain a final decree; that appellant was evidently misled by the master's error in practice and that substantial injury will be done her unless the original error is rectified. The decree of April 21, 1924, unless treated as a decree nisi, was prematurely entered and cannot be regarded as a valid final decree. It follows that it will not support an appeal to this court.
And now, May 6, 1925, the present appeal is quashed and the record is remitted to the court below with directions to recommit the case to the master in order that he may file his findings of fact and of law together with a form of decree, and give notice thereof to counsel in order that exceptions may be filed by them if they see fit to do so within ten days thereafter.