Garner v. Prewitt

WALKER, J. In the decree of 3d November, 1854, it was referred to the register, to ascertain the amount of the annual expenditures on account of the partnership plantation, and also to ascertain the amount annually paid for rope and bagging for the partnership plantation. It is not determined, either in that, or in any previous order, whether or not Garner would be credited with those two items. It is altogether probable that he would be so credited, but it was not judicially determined. The equity of the parties as to two matters was thus left open and undecided. Is that a final decree, which thus leaves — 18 — open questions involving, so far as they go, the equities of tlie parties, even though as to all other matters the equities are ascertained and fixed? We are constrained to decide this question in the negative. That cannot be a final decree, which settles only a part of the equities. If there are one hundred controverted questions of equity, a decree which settles ninety-nine of them, and leaves one undecided, is not a final decree. The cause would have to be set down again for a hearing, and the litigation of the equities of the case on the undecided points might again come up. The principle to bo extracted from our decisions is, that if all the equities between the parties are settled, and there remains only a reference to be had for the ascertainment of the amount, the decree is final. We have no decision which characterizes that as a final decree, which only settles a part of the equities in the case. — Garrard v. Webb, 4 Porter, 73; Weatherford v. James, 2 Ala. 170; Kennedy v. Kennedy, 2 Ala. 571; Bank v. Hall, 6 Ala. 141; McKinley v. Irvine, 13 Ala. 681; Ansley v. Robinson, 16 Ala. 793; McCartney v. Calhoun, 11 Ala. 121; McLane v. Spence, 11 Ala. 182; King v. King, 28 Ala. 315; Ex parte King, 27 Ala. 387; Craighead v. Wilson, 18 How. (U. S.) R. 199. If we look away from our own, to the reports of other States, we will find many decisions, which do not go so far as oúr own in regarding decrees as final which do not dispose of the entire case; and, perhaps, none which go farther. We cite, without comment, the cases we have examined : Johnson v. Everett, 9 Paige, 636; Cruger v. Douglass, 2 Coms. 571; Kane v. Whittick, 8 Wendell, 219; Hay v. Hay, 1 J. J. Marshall, 497; Thompson v. Peebles, 6 Dana, 387; Lewis v. Outon, 3 B. Monroe, 453; Cook v. Bay, 4 Howard’s (Miss.) R. 485; Nesbit v. Price, 1 Hill’s (S. C.) Ch. 445; Johnson v. Clark, 4 Ark. 235; Mackey v. Bell, 2 Munf. 523; Cocke v. Gilpin, 1 Rob. (Va.) 20; Taylor v. Read, 4 Paige, 561; Teal v. Woodworth, 3 Paige, 470; Townsend v. Townsend, 2 Paige, 413; Erskin v. Henry, 6 Leigh, 378; Graves v. Graves, 1 Leigh, 34; Atkinson v. Manks, 1 Cowen, 701; Cannon v. Hemphill, 7 Texas, 184. Neither our own, nor any of — 19 — tlie other decisions, would sustain us in holding the decree above named to be final; and we therefore decide, that the decree was not final, and that the period necessary to bar an appeal in the case is not to be computed from its date. Besides the motion to dismiss the appeal, upon the ground of the statute of limitations, we are asked either to dismiss or strike out the assignments of error, for the alleged reason that the appellant has so acted upon the decrees of the court below that he should not be permitted to seek their reversal. 2. The decree of May term, 1858, ordering an account between the parties ; the decree for the sale of the partnership property except the “mountain land; ” the division of the proceeds of the sale of the property, and of the assets in the receiver’s hands ; the extra allowance of five hundred dollars to the register; the placing of two claims in the hands of L. B. Cooper, to be collected for the equal benefit of the partners; the amount of the plantation expenses from the first of 1844, and the expenses for rope and bagging, are all matters as to which the chancellor and register acted in pursuance to, and in accordance with the agreement of the parties. As to them, neither party will be heard to assign error. The maxim, “ consensus tollit errorem,” applies. 3. The decree of November Bd, 1854, settled, with a very slight exception already pointed out, the principles upon which the account between the parties was to be taken, and prescribed the amounts of the great majority of the items on both sides. Upon taking the account, the register found a balance against the appellant of |1718 21, and a balance against John Prewitt, one of the appellees, of $1681 50. After these balances were ascertained, a settlement was had between the three parties, which included a division of the funds and claims in the receiver’s hands. Upon the footing up of the calculations on that settlement, there were inequalities of a few dollars, which were at once adjusted by payments in cash. Subjoined to the statement of the settlement is a writing, subscribed by the parties, as follows: “ The above notes, assigned to — 20 — the parties respectively, have been this day received of A. "W. Ligón, the receiver; and the amounts of cash, allotted to each partner respectively, have in like manner been this day received of said receiver by the said parties, and this is his receipt therefor. The said Garner has, on this settlement, accounted for the balance of $1718 21 found against him in favor of the firm, as per the register’s report, and this is his full discharge therefor; and John Prewitt has, on this settlement, accounted for the sum of $1681 50 charged against him in favor of the firm for the hire of Coleman, as per register’s report, and this is his full discharge therefor.” The settlement, and the consequent agreements, make a contract, in which the parties reciprocally received and granted benefits, and executed discharges. The discharge of the appellant from the balance against him, and the similar discharge of John Prewitt, were elements of, and considerations moving to, the contract. Por the purpose of that contract, and by that contract, the appellant treated the judgment of the register and the decree of the chancellor, in reference to the account, both against him and against John Prewitt, as subsisting, valid and real; and the fact that they were so treated was a consideration of the contract. It cannot be known, and no court is authorized to pronounce, that, in the absence of such inducement, either of the appellees would ever have assented to the contract. If the balances ascertained had not been treated as subsisting dues, it cannot be known that the appellees would have ever assented to the division of the assets which was made, or would have taken the particular claims which they received, or permitted the appellant to take those which he received; or that Richard Prewitt would have consented to the discharge of the other appellee; or that either of the appellees would have consented to the discharge of the appellant; or that John Prewitt would have consented that the balance, ascertained against him, should enter into the settlement, and be treated as a valid and subsisting demand against him. It cannot be known, that if the decree, so far as it pertains to the account against the appellant and — 21 — the account against John Prewitt, should be reversed, no injury would result to the appellees. • If they have obtained any advantage in the contract, they would lose it. John Prewitt may have been prevented by the settlement from contesting, in this court his liability for the balance against him. Both the appellees may have been prevented from coming before this court with an argument that the appellant was chargeable still farther than he was charged. The claims received by the respective parties may have proved valuable or worthless to an unequal extent. 'Without going farther into this subject, we think it manifest that this court can find in the record no authority for the conclusion, that the appellees would not be injured by the reversal of the decree of the court below as to the matters of account, and that it is impossible for the appellant or the court to restore the appellees to the same situation in which they stood, when they were induced to make the settlement with the appellant'by his treatment of the decree as valid and subsisting. We are thus brought to the question, whether an appellant, who has acted upon a particular and distinct branch of a decree, and, by doing so, obtained substantial benefits, which he retains, shall be heard to allege error in such branch of the decree, when his adversaries cannot be placed in statu quo, and when we cannot perceive that no injury will result to them. A decision of this question in the negative is demanded by the law, as it is manifestly required by common justice. It is decided in the two cases'jof Hall v. Hrabrouski, 9 Ala. 278, and Bradford v. Bush, 10 Ala. 274, that this court would not allow the benefit of a reversal of the judgment of the circuit court to a plaintiff in error, until he had restored the amount collected by execution on the judgment in his favor. The principle of those decisions is, that a plaintiff should not be permitted to reverse a judgment, the correctness of which he affirms by his conduct, until lie protects the opposite party from injury by placing him in statu quo. This principle was, in McCreelis v. Hinkle, 17 Ala. 459, held inapplicable to a case from the orphans’ court, where, upon a decision as 'to the — 22 — amount due, tbe defendant voluntarily paid it. Tbe payment was assimilated to one made before the judicial investigation was bad; and tbe decision was placed upon tbe ground, that no injustice or oppression would be involved in permitting a plaintiff to retain that which was thus voluntarily paid, while a reversal was sought in tbe appellate court. Tbe decision does not assail, but declares an exception to the general rule. In Knox v. Steele, 18 Ala. 815, tbe principle of tbe cases reported in 9th and 10th Ala. was reasserted, and applied to a plaintiff alleging error in a decree of tbe orphans’ court. That principle was not held in Tarleton v. Goldthwaite, 23 Ala. 346, not to be applicable to eases arising in tbe chancery and probate courts, but not to be “ necessarily applicable.” Tbe reason why it is not necessarily applicable is, that decrees in tbe chancery and probate courts may consist of several distinct parts; and no injury could result from permitting a party, who bad executed a decree and taken its benefits in one particular, from revising the action of tbe court in reference to some distinct point. Decrees of those courts, consisting of distinct and independent parts, might be reversed in part, and affirmed in part. Such could not be tbe case in reference to judgments of a court of law. Its judgment is a unity. 'When the very part of the decree sought to be' reversed has been executed by the appellant, the principle of' Hall v. Hrabrouski must apply. Every reason which caused its application there requires its application in such a case. The appellant should always be denied the benefit of a revision of any particular branch of a decree, while he holds on to the benefits derived from its execution; unless, peradventure, it might appear, as it did in McCreelis v. Hinkle, that no injury would result to the opposite party from a different course. In Tarleton v. Goldthwaite, the decree had two distinct features, one requiring the execution of a deed, the other the payment of money. The deed was executed, and the money paid, voluntarily. It was attempted to revise no other than the pecuniary decree, and the cause was retained, as in the case of McCreelis v. Hinkle, for the reason that the court could perceive that no injury — 23 — would result to the adverse party from allowing the complainant to litigate the question, whether he was not entitled to more than the amount voluntarily paid. The principle is the same which is declared in Byrd v. Odem, 9 Ala. 755, that the acceptance of a payment voluntarily tendered is no obstacle to the recovery of any additional sum which may be due. In the case of Riddle v. Hanna, 25 Ala. 484, the principle declared in reference to common-law cases was applied to a chancery suit, and our reasoning is thus sustained by an express decision of this court. This review of our own decisions is sufficient to maintain the position, that an appellant, who has executed a decree, will not be permitted, while he retains the benefit of the execution of the decree, to reverse the decree; this court not being able to see that the appellees will sustain no injury therefrom. It would be useless, in a case where the appellees cannot be placed in statu quo, to pause in the appellate proceedings for the purpose of allowing restoration to be made. The appellant having in this case acted upon the decree in such a manner that the appellees cannot be placed in statu quo, the proper course is to refuse to hear any assignment of error upon any distinct branch of the decree that has been so executed; and, if the entire decree should be found similarly executed, to dismiss the appeal. We cite, without comment, several other authorities, which sustain our conclusion, and some of which go farther than it is necessary for us to go in this case: Morgan v. Ladd, 2 Gilman, (Illinois,) 414; Thomas v. Negus, ib. 700; Atkinson v. Manks, 1 Cowen, 692; Camden v. Edie, 1 H. Black. 21; Hargraves v. Lewis, 7 Georgia, 110; Emerick v. Armstrong, 1 Ohio, 233; Clowes v. Dickinson, 8 Cowen, 328; Carter v. Clark, 3 Edw. Ch. 405; Cannon v. Hemphill, 7 Texas, 184. The decision in Dyett v. Pendleton, 8 Cow. 325, is no authority here. In that case, the defendant in a judgment gave his note for its amount to the plaintiff, the judgment remaining open for the security of the debt, and then sued out a writ of error. No injury could have resulted to the defendant in error, in the event of a reversal, from the — 24 — fact that the note was given; and the plaintiff m error had not received the slightest benefit from any execution of the judgment, which he retained while he sought its reversal. The appellant did not consent that the chancellor should order a sale of the “mountain land; ” but, after the decree adjudging it to be partnership property, the appellant did agree that it might be sold; and after the sale, by agreement between the three partners, a division of money and evidences of debt arising from the sale of that and all the other partnership property was had. The proceeds of the sale of the mountain land was blended in the division with the proceeds of the sale of other property, and a single division of the entire mass was made; and the appellant received a surrender of a large secured debt on himself. For reasons so like those above presented in reference to the account, that it is unnecessary to state them, we decide, that the appellant cannot revise the action of the court below in this branch of the decree. "We do not perceive that the decree of the chancellor, confirming the register’s report of the account with the receiver, was either made by consent, or acted upon by the appellant. The appellant has a right to show that there was error in that part of the decree, and the appeal must be retained to allow him an opportunity to do so ; and there may be some other matter overlooked by us as to which the appellant has a right to assign errors. If it should be discovered upon the hearing that there is a substantial ground for appeal, we will be at liberty to revise the action of the court below in reference to the costs. — Alexander v. Alexander, 5 Ala. 517; Randolph v. Rosser, 7 Porter, 249; Hunt v. Lewin, 4 Stewart & P. 147. The motion to dismiss the appeal is overruled. The motion to strike out the assignments of error is sustained, as to the assignments numbered 1, 2, 3, 4, 5, 6 and 7. The 8th and 9th assignments are left to abide the farther action of this court. One of these last assignments pertains to the question of costs, and the other is the gen — 25 — eral assignment of error in the decree, and would embrace the matter of the affirmance of the register’s report stating the account with the receiver.