Roemer v. Neumann

26 F. 332 | U.S. Circuit Court for the District of Southern New York | 1886

Coxe, J.

That the decree relied on by the complainant as an es-toppel is interlocutory in form is manifest. It is, on its face, called an interlocutory decree. It leaves open the question of profits, damages and costs, and orders a reference to a master. It does not put an end to the cause. An appeal from it will not lie. It Is still in the control of the circuit court. It has never been módified, and no other decree has been entered. But the complainant contends that, though it may not be definitive in form, it is so in fact, for the reason that the complainant, at the time of its entry, signed a paper releasing the defendants from all claims for profits, damages, and costs. There is nothing in the record to show that this release was filed or brought to the attention of the court at the time of the entry of the decree. It is, however, alleged in the complaint, and admitted in the answer, that it was signed. The complainant was, therefore, quite likely, in a position, upon exhibiting this release, to have the interlocutory decree made final, provided the opinion was not then entertained which the court expressed later, that “possibly both parties were acting under a misapprehension.” The situation in this respect was as if the master, after hearing the parties, had made a report that there were no damages or profits. Upon presenting such a report, costs being waived, the court, although it might refuse to do so, would, in all probability, order a final decree for the complainant. The difficulty is that this decree, though it might have been made final, was not so made. The distinction is obvious between a final decree and a stipulation upon which such a decree may be entered. The sanction of the court, even though a formal supplement to the agreement of the parties, was necessary. In the absence of an express authority, the court should hesitate before holding that such a decree is res judicata. If there is a doubt, it ought to be resolved against the party who urges the estoppel. A mistake in so deciding can be hereafter corrected; whereas, if the principal defenses are stricken from the answer erroneously, the defendants will be remediless.

The exceptions are overruled.

1 Reported by Charles C. Linthicum, Esq., of the Chicago bar.