Cary v. Richardson

On Motion to Dismiss. The opinion of the Court was delivered by Bermudez, C. J. The plaintiff and appellee moves to dismiss tills appeal, because the judgment complained of is not final and such an. interlocutory decree as may cause au irreparable injury. The prayer of the petition is, 1st, that there be judgment dissolving a partnership as of a certain past date; that the accounts of the concern be examined into and reported upon by auditors; 2d, that there be judgment against the defendant for the amount found due by the experts, and for a further sura of $25,000. The defendant joined issue, resisting plaintiff’s pretensions, but admitting a dissolution, 1 After a protracted trial, the developments of which are illustrated by a transcript coveriug’some 720 pages, a judgment, termed “ interlocutory,” was rendered, declaring the existence and dissolution of the partnership; that its affairs are unsettled ; that the plaintiff has contributed $30,000; that he has an interest of one-third; that the possession of its effects is in the defendant, who is to account for the same; that auditors be appointed to state the accounts between the parties and that they report the same. This judgment was signed many days after its rendition, and is appealed from by the defendant. [506] It is not always easy to discriminate between interlocutory and final judgments, particularly which, among the former, can or not cause an irreparable injury. There exists', however, a signal difference between the two. Interlocutory judgments are the decrees rendered, whether before or after the suit is ended.and all the matters involved therein are set at rest. They are anciliary to, or executory of the final and complete adjudication, and do not pass upon the merits of the controversy. Final judgments are those by which rights of parties, at issue on the merits of the suits, are adjudicated upon partially or entirely. C. P. 538, 539. Definitive judgments are those adjudications which have acquired the force of res judicata, by which the questions determined are set at rest beyond possibility of revision by appeal. C. P. 539; 1 Cranch, 103; 3 Bl. Com. 398; Freeman on Judgments, §§16, 21, 24, 34, 36; 7 Cal. 27; 8 Cal. 57. There is no limit to the number of interlocutory or final judgments which may be rendered in the course of certain judicial proceedings ; particularly in those which contemplate the settlement of the affairs of a deceased or insolvent person or corporation. Hundreds of instances will readily suggest themselves to the mind of experienced practitioners. An appeal lies from-all judgments, whether interlocutory or final, in appealable cases; but, as regards the former, only where, by not being appealed from, an irreparable injury may be sustained, and where, having a character of finality, they may become res judicata. C. P. 566; 1 N. S. 73; 3 R. 103; 11 R. 453; 9 L. 161; 15 L. 521; 2 An. 964; 3 An. 217; 7 An. 171; 9 An. 344; 10 An. 462; 12 An. 87, 455; 22 An. 200; 26 An. 57; 28 An. 880, 889, 903; 30 An. 1084; 31 An. 823; H. D. 26 et seq.; L. D. 15 et seq.; O. B. 34, 789. There are many cases in which judgments may be rendered which are sufficiently final to authorize an appeal, although not final on all the matters in dispute. 9 M. 519. It is not always necessary that the order itself should work an irreparable injury. It is sufficient if it be such as, by the final action of the court, would cause such injury. 6 L. 435; 2 R. 342; 3 R. 103; 11 L. 452; 8 R. 442; 7 An. 141, 545; 9 An. 344; 10 An. 463; Freeman on Judgments, §§.21, 24. An interlocutory judgment should not trench upon the merits of the cause; but the moment that it does, it acquires a character of finality, which assimilates it to a final judgment and renders it appealable. It is not essential for a judgment to be final, that it should settle all the rights existing between the parties to the suit. All that is required is, that it determine issues involved on the merits of the action. The judgment is none the less final, because some future orders of the court may become necessary to carry it into effect. The nature of such an order depends upon the effect produced by the adjudication upon [507] the rights and interest of parties. The stage at which it is made is not the test for appellate purposes. If an interlocutory order will finally affect the merits of the case, or deprive a party of any benefit which he may have at the final hearing, an appeal is allowable. It is not always absolutely required to dispose of- the entire merits of a cause and all the parties before the court, as a necessity to a final decree. Any order or decree finally settling any right or interest in controversy between the parties to a cause is final and reviewable. Loring vs. Ilsey, 1 Cal. 27; 8 Cal. 57; Perkins vs. Sierra Nevada S. M. Co., 10 Nev. 405; Barry vs. Briggs, 22 Mich. 201; Kennedy vs. Kennedy, 2 Ala. 471; 3 Ala. 434; Barfield vs. Impsou, 2 Miss. 326; Tucker vs. Yell, 2 Ark. 420; Ware vs. Richardson, 3 Md. 505. Where a decree ascertains and settles the rights of the parties in litigation, it is reviewable, although the cause may be referred to ascertain facts for an account. A decree giving all the consequential directions, so as finally to dispose of the whole case upon the coming in and confirming of the report, is a final decree. Cruyer vs. Douglass, 2 N. Y. 571; 7 Paige, 18; 9 Paige, 189, 636; 10 Wall. 586; 10 Paige, 131; 11 Paige, 189; 1 Barb. Ch. 21; 3 Id. 382; 1 Johns. Ch. R. 77-81; 7 Caldwell, 416; 10 Wall. 583. It is only necessary that all the rights of the parties in the controversy be settled and determined, to make the decree final, so as to authorize it to be reviewed. It is not only the last order in the case, approving the report, that is the final decree from which an appeal may be prosecuted, but .it is the decree which fixes and settles the rights of the parties. Other decrees, which follow it, are in the nature of an execution of the decree, and not the final decree of -the case. Myers vs. Manny, 63 Ill. 211. It is true that, in 6 N. S. 350, the Court said that a partition suit is terminated only by the decree of final homologation, and that the judgment decreeing the partition, fixing the ownership of the parties and adjusting the collations between them, is only interlocutory, but the weight of authority, as well as of reason, is against the doctrine. 10 L. 50; 11 L. 494; 1 R. 512; 7 An. 529; 18 Mich. 163. In Woolfolk vs. Woolfolk, 30 An. 146, the Court said: “ We are at a loss to understand why a judgment, rendered upon issues regularly formed by petition and answer, passing upon the titles of the litigants, decreeing their respective portions in property, and fixing their indebtedness to each other, wants any of the essentials of a definitive decree. The rule or motion to homologate a partition, when made, is, in some sort, a new proceeding requiring notice, and to be followed by another decree. We do not understand that upon trial of such rule one can again bring into, question the matters adjudicated [508] in the original judgment of partition, but the contest is confined then to things done in execution of it. It is doubtless true, that until this, decree of homologation and confirmation is rendered, the partition cannot be regarded as, or have the effect of a judicial partition, bu,t that does not prevent the decree of partition in so far as it adjudicates upon the rights of the parties as between themselves from being final.” 63 Ill. 211; 13 Pet. 6; 2 Black, 524, 539; 2 Wall. 106. Whatever may be the character of the judgment in this case, it is clear that it is not a purely interlocutory judgment.. It passes upon rights and decides questions of great importance to the parties,-raised on the merits and which might have formed the object of a distinct suit. Its decretal portion is premonitory of the ultimate .decree or judgment in the case. If unappealed from, not being revisable by the court by which it. was rendered, it would have acquired the force of res judicata by the lapse of time, and so concluded the parties. It exhausts, so far, the powers of the court; and is appealable, that its correctness may be tested. The defendant was left no other alternative but to appeal or acquiesce. The motion to dismiss is denied. Mr. Justice Fenner recuses himself, having been of counsel.