150 F. 577 | 9th Cir. | 1907
after stating the case, delivered the opinion of the court.
The appellee moves to dismiss the appeal on the ground that the order directing the payment of money into the registry of the court is an interlocutory order not appealable. In Forgay et al. v. Conrad, 6 How. 201, 12 L. Ed. 404, it was held that a decree that money shall be paid into court or that property shall be delivered to a receiver, or that property held in trust shall be delivered to a new trustee
“Tlie rule is well settled that a decree to be final within the meaning of that term as used in the acts of Congress giving this court jurisdiction on appeal must terminate the litigation of the parties on the merits of the ease, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the decree it had' already rendered.”
In Louisiana Bank v. Whitney, 121 U. S. 284, 7 Sup. Ct. 897, 30 L. Ed. 961, the court said:
“We have no hesitation in granting the motion. The court has not adjudicated the rights of the parties concerned. It hag only ordered the fund into the registry of the court for preservation during the pendency of the litigation as to its ownership. Such an order it has always been held is interlocutory only, and not a final, decree. Forgay v. Conrad, 6 How. 204, 12 L. Ed. 404; Grant v. Phœnix Ins. Co., 106 U. S. 431, 1 Sup. Ct. 414, 27 L. Ed. 237. If in the end it shall be found that the fund belongs to the board of liquidation, it can be paid from the registry accordingly, notwithstanding the order that has been made. The money when paid into the registry will be in the hands of the court for the benefit of whomsoever it shall in the end be found to belong to.”
Whether a decree is interlocutory or final is often, as intimated by the court in McGourkey v. Toledo & Ohio Ry., 146 U. S. 544, 13 Sup. Ct. 170, 36 L. Ed. 1079, difficult to determine. But in the present case there is, under the authorities, no room, for doubt.
The appeal is dismissed.
