Lead Opinion
Allеn S. Crane was the guardian of Mary A. Crane and James H. Crane. James H. Crane died intestate .and unmarried, in November, 1876, leaving said Mary A. Crane and one Clara B. Haney his sole heirs.
Mary A. Crane, in May, 1880, intermarried with Matthew Pfeiffer, an adult, she being then and now a minor. At the September term, 1881, of the Jackson Circuit Court, said guardian filed in said court his separate final settlement reports in the estate of each of said wards.
In his report in the estate of said Mary A. Pfeiffer he stated that he had repeatedly offered to settle with her and her husband, and had been unable to make settlement with them.
On the 27th of May, 1881, said Mary A. Pfeiffer аnd her husband appeared in court and filed a written motion, stating that since said marriage they had demanded of said guardian “ an accounting and settlement with themselves of the said guardianship, which he hаd failed and refused to make,” and claiming that said reports be dismissed and rejected. This-motion was sworn to by said Matthew Pfeiffer. It was overruled by the court.
The ward and her husband then filed exceptions to said reports, and propounded interrogatories to the guardian, which he answered under oath. They then requested the court to make a special finding upon the exceptions, and stated that
At the November term, 1881, the exceptors requested the court to make a special finding of thе facts and state the conclusions of law thereon, and this the court did, sustaining some of the exceptions and overruling others.
The record then states as follows: “ To which findings of fact and conclusiоns.of law the exceptors at the time except.” They also moved for a new trial, and this motion was overruled. The court then made the following order:
“And it is ordered by the court that the reports of Allen S. Crane, as guardian of Mary A. Pfeiffer and James H. Crane, be rejected, and approval thereof is refused, and said guardian is directed to make and file his report in accordance with the special findings herein.” To this order the exceptors at the time excepted.
Their bill of exceptions No. 1 states that the court made the following findings and conclusions of law, to wit: (here insert), “tо which-findings and conclusions of law numbers 6, 7, 8, 9, E, F, G, H, J and K, the said exceptors at the time excepted.” The reasons alleged for the motion for a new trial were as follows:
1. Error of the court in the conсlusions of law numbers 2, 3, 4, 8, A, B, C and D, for the reasons that the assessments of the amount of recovery in favor of exceptors áre too small.
2. That the findings of fact in the finding and decision of the court are not sustаined by sufficient evidence.
3. That the conclusions of law made by the court, in its finding or decision, are all contrary to law.
4. That the findings of fact -found by the court in the decision are contrary to law and evidence.
5. On account of errors of law occurring at the trial and excepted to by exceptors at the time.
The order of the court, rejecting the reports of the guardian and direсting him to make a further report, was appealed from by the ward and her husband.
The appellants assign the following errors:
1. The court erred in overruling the appellants’ motion to dismiss-the report of said appellee in the estate of said ward, Mary A. Pfeiffer, aud in the estate of said ward, James H. Crane, deceаsed.
2. The court erred in its conclusions of law, “E,” “F, ” “J,” and “8.”
3. The court erred in overruling the motion for a new trial.
The appellee moves to dismiss the appeal, because “ no final order, decree or judgment was made by the circuit court, from which an appeal would lie.”
As a general rule, appeals may be taken from the circuit court to the Supreme Court from all final judgments. R. S. 1881, sectiоn 632.
The distinction is between final judgments and interlocutory judgments. A final judgment is the ultimate determination of the court upon the whole matter in controversy in the action. An order of the court, made in the progrеss of the cause, requiring something to be done or observed, but not determining the controversy, is an interlocutory order, .and is sometimes called an interlocutory judgment. Powell Appellate Procеedings, 51.
From these interlocutory orders appeals can be taken in four cases only.
1. Where the order is for the payment of money, or to compel the execution of any instrument of writing, or the delivery or assignment of any securities, evidences of debt, documents, or things in action.
2. Where the order is for the delivery of the possession of real property, or for the sale thereоf.
3. Where the order grants or dissolves, or overrules a mo
4. Where the order is made upon a writ of habeas corpus either in term or vacation. R. S. 1881, section 646, which is the same as section 576 of the code of 1852.
The order appealed from in this cаse is not one of any of the foregoing cases. Therefore, if it is an interlocutory order, the' appeal will not lie and ought to be dismissed. It does not make afinal disposition of the guardianship. It would seem, therefore, not to be a final judgment. It substantially rejects a guardian’s report, and directs him to make another report. It would seem, therefore, to be an order made in the progress of the cause, not determining the controversy, and, therefore, interlocutory.
The appellant claims that it is in the nature of afinal judgment ; he says it determines the rights of the parties, at least, as to those parts of the report which were held to be right.. But so it might be said that an interlocutory decree for the-partition of lands determines the interests of the parties and orders the land to be divided аccording to such interests; yet it has always been held that an appeal will not lie from such an interlocutory order, because it is not one of those mentioned in the statute. Rennick v. Chandler,
In the case of Thiebaud v. Dufour,
In Wood v. Wood,
In Goodwin v. Goodwin, 48 Ind.584,it was held that there could be no appeal from a partial settlement of an executor or administrator, and that such settlements are not conclusive, but are only prima facie correct, and on final settlement may be opened up so as to correct mistakes therein, although not excepted to at the time. There is no reason why the same rule should not apply to partial settlements of guardians.
In the case of Angevine v. Ward,
The administrator’s appeal was dismissed because the order appealed frоm was not a final judgment, but was an interlocutory judgment, and was not one of the orders mentioned in section 576 of the code of 1852, which is the same as section 646 of the R. S. of 1881. For the same reason, and under the authority of the eases hereinbefore cited, the present appeal should be dismissed.
Per Curiam. — It is therefore ordered, on the foregoing opinion, that the appeal in this cause bе and the same is hereby dismissed, at the costs of the appellants.
Rehearing
The controversy in this case arose upon the separate reports of the guardian of the estates of each оf his wards, Mary A. Crane and James H. Crane. Mary A. Crane, had married Matthew Pfeiffer, and James H. Crane had died, leaving Mary A. Crane his sole heir.
The court made an order that both reports be rejected and аpproval thereof refused, and that the guardian report further. From this order Pfeiffer and wife appealed.
It was held in Angevine v. Ward,
Per Curiam. — The petition is overruled.