Caswell v. Comstock

Manning J.: A motion is made in this case to dismiss the appeal on the ground that the decree appealed from is not a final decree. Our attention was called by opposing counsel to the phraseology of the statute, which allows an appeal from “the decree or final order” — the word “final” being nsed in connection with “order,” and not “decree.” All decrees [395] are, like judgments at law, either interlocutory or final; the latter when they are the final determination of the court on the rights of the parties, and the former when they are auxiliary only to the final determination. And when the Avord decree alone is used in a statute, we think it is to he understood to mean a final decree, unless there be some thing in the context showing an interlocutory as well as a final decree is intended. The universal understanding — one that has been acted on by both the bench and bar — we believe, has been that a final decree only could be appealed from; and such, we think, is the true construction 'of the statute. The decree, after stating a cevtain contract between the parties should be specifically performed by defendants, directs a reference to take proof of damages, alleged in the bill to have been sustained by complainant, and of the* sale and conversion by defendants of certain real and personal property. It then directs the officer to report such proofs, with the sums that defendants are to be charged with, and that he also compute the amount of payments made to defendants by complainant under the contract, and report the amount due to defendants from complainant under the contract, after deducting such payments and damages. And in case a balance should be found due to defendants, or either of them, on complainant making a tender to them of such balance, they are required to convey the premises described in the contract to complainant. Such a decree is clearly interlocutory and not final. No decree, we think, is final that directs a reference to a master, or other officer, to do What the court, but for its power to make such reference, would itself have to do before it could decide the case. Such references are made, not in execution of the decree, but to relieve the court of what it would otherwise have to do itself. The acts and doings of the master in all such cases ■are in them nature judicial, and not ministerial, and, to be effectual, must be confirmed by the court, when they become the acts of the court itself. [396] There appears to be some little confusion in tbe oases as, to what is a final decree, which we are disposed to attribute to the fact, that the court, in some few of the cases,, does not seem to distinguish between directions given for-the execution of a final decree, as in mortgage sales, and' references that are preparatory to a final decision upon the-merits. A decree with such a reference can, with no more, propriety, he called a final decree, than a judgment at, law with a reference to a clerk or a jury to assess damages,, can be called a final judgment.* Christiancy and Campbell JJ. concurred. Martin Ch.. J. did not sit in this cause, having decided the case in the, court below. Footnotes [*] The same motion was made in the case of Angeline G. Moore v. Charles Olin, from Calhoun Circuit, and was disposed of at the same time, in the same way. The hill in that case was filed hy complainant against her lato guardian to set aside certain deeds and a lease made hy her to him, to declare void a receipt which she had given him, and for an account, &c. The decree declared the de^ds void, except that, under the circumstances of the case, they should stand as security for any amount that should he found due the defendant from complainant on accounting — it declared the lease and receipt void, and referred the cause to the circuit court commissioner for Calhoun county to take an account between the parties, with specific directions in respect to such account, and to report thereon. And all questions of costs, as well as all further directions, were reserved until the coming in of the commissioner’s report. G. V. JZ. Lothrop, for appellee. O. I. Walker, for appellant. The case of John W. Turner v. Olivers S. Chapman and Others, dismissed a few days earlier, was an appeal from a decroo, made on hill filed for the specific perform-., anee of a contract for the conveyance of-lands. The decree was that complainant is entitled to a specific performance, and that it he referred to a circuit court com-., missioner to ascertain if defendants can. make good title to the promises in ques».. tion, and to report thereon, and also to, report the amount due from complainant on the agreement; and that the question of costs and all other directions ho rev served until the coming in of his report,. J. G. Sutherland, for appellee. A. Gould, for appellants. The following, in addition to those cited-on the argument, are cases in which courts, have discussed the question, What is a final decree? Craighead v. Wilson, 18. How. 199; Gudgell v. Mead, 8 Mo. 53; Young v. Skipwith, 2 Wash. 300; Williams v. Field, 2 Wis. 421; McMurtry v. Glascock, 20 Mo. 432; Choteau v. Rice 1 Minn. 24.