Parker v. Flagg

Gray, C. J. By the statute which regulates the chancery jurisdiction and practice of this court, “ cases in equity, and motions and other applications therein, whether interlocutory or final, shall in the first instance be heard and determined by one justice; ” “ from final decrees made by such justice, any party aggrieA’ed may, within thirty days after the entry thereof, 30 claim an appeal; ” “ from all interlocutory decrees made by a single justice, any party aggrieved may appeal, in like manner;” and “ all interlocutory decrees not appealed from shall be open to revision on appeals from final decrees, so far only as it appears to the full court that such final decrees are erroneously affected thereby.” Gen. Sts. c. 113, §§ 6, 8, 10, 11. By our practice, an order which merely sustains a demurrer to the bill, without more, is an interlocutory and not a final decree; for it does not put the case out of court, but leaves it still within the power of the court to allow amendments, either in form or in substance, at any time before the bill is ordered to be dismissed. Merchants’ Bank v. Stevenson, 7 Allen, 489, 491. Forbes v. Tuckerman, 115 Mass. 115, 119. In the present case, the only decree entered in March was an order sustaining the demurrer; the final decree entered in May, dismissing the bill, was founded on and necessarily affected by that order; and the question whether that order was erroneous is therefore open upon the appeal seasonably taken from the final decree. The bill is brought by the executor, representing all the creditors, of an insolvent estate, to set aside conveyances made by the testator of all his property, real and personal, in fraud of those creditors, to his wife, who is the sole defendant; some of the property consists of mortgages, to recover which the plaintiff has no adequate remedy at law; all the conveyances appear to have been parts of one scheme; and no objection is, nor it would seem could be, taken to the bill for multifariousness. The demurrer was erroneously sustained, and should have been overruled. Chase v. Redding, 13 Gray, 418. Welsh v. Welsh, 105 Mass. 229. Gilson v. Hutchinson, 120 Mass. 27. The decrees must therefore be reversed, and the defendant ordered to Answer the Mil.