Patterson v. Hopkins

23 Mich. 541 | Mich. | 1871

Per. Curiam.

The motion to dismiss tbis appeal rests on the claim tbat tbe decree is not final, but interlocutory. Tbe difficulty wbicb bas arisen in determining its character, arises out of the fact tbat it purports to declare and regulate in advance, all or nearly all imaginable action tbat may be expected to be taken in tbe future disposition of tbe case. It declares tbe principles upon which tbe commissioner and tbe court are expected to act throughout.

But, in spite of all this, it really adjudicates nothing capable of being carried into effect without further inquiry as to the rights and liabilities of the parties. It declares that the complainant ought to have a specific performance. but it does not fix tbe terms nor direct either party to act. In order to ascertain what shall be fixed as the specific action to be had by each, it orders a reference involving a multitude of nice and complicated inquiries, including, first, an inquiry into the rents received, the rental value, and the damages for waste or otherwise done or incurred during a possession wrongfully taken away from a receiver in the cause; second, an inquiry into liens and incumbrances, and into the state of the title; third, the state of the accounts after allowing and applying the sums estimated on the other inquiries. And in addition to these references, the decree goes on to require that upon or after various periods from the confirmation of the report, the defendants or the receiver shall pay off the incumbrances reported to exist, and in case the sums they should pay exceed what they may be entitled to receive on the contract, that they pay that excess or stand in contempt.

But every matter which legitimately belongs to a final decree is left to be determined. There is no adjudication whether any, and if so what, title will be found to exist to be conveyed; nor how much money is to be paid by either party to the other on the specific performance. All this is to be ascertained hereafter by proof. Upon the reference all these important controversies are yet to be litigated, and it is somewhat difficult to see how one reference can satisfactorily dispose of so many things which are contemplated as requiring different treatment under different aspects. The report or reports cannot be confirmed without an opportunity to be heard on such exceptions as may be taken, and there is no practice which would make this decretal order of reference sufficient to enforce itself upon the confirmation of the report without a new and distinct decree. It operates only as a set of instructions to the commissioner how to pursue certain investigations. Beyond this, it is a mere declaration of intentions which the court, as at present advised, expects to carry out, but which, upon a final hearing, may or may not be adhered to. They have no efficacy until put into the form of a judgment that is capable of being carried into execution.

There would be great convenience in allowing an appeal from all such decretal orders as are designed, practically, to -decide the main controversy. Considerable expense would be saved in a case like the present, if, before the long and intricate investigation before the commissioner, it could be finally decided whether the contract ought to be enforced. But the jurisdiction is now confined to appeals from decrees which are final in their action upon the rights of the parties, and ready to be definitely enforced.

The practice of inserting in these interlocutory decrees directions as to what decrees or orders shall be rendered in the future is very objectionable, although not without precedent. It originated in jurisdictions where such orders are appealable, and may have had some use in obtaining as full directions as possible for future conduct from the appellate court. But under our practice, it not only leads to confusion, but sometimes also to splitting up the final decrees themselves, by adjudicating piecemeal instead of in on'e decree.

The appeal must be dismissed. But the intricate character of the decree has very naturally led to taking the case up, and no costs can be given on the dismissal.