Ledyard v. Henderson, Terry & Co.

Simrall, J.: It is conceded by the counsel for the appellees, that, if the decree against Dobbs, referred to in the motion, was “final,” then there was no power in the court at a subsequent term to set it aside. Harr. Ch. Pr. 622, thus defines a final decree: “ When all the circumstances and facts necessary to a complete explanation of the matters in litigation are Drought before the court and so fully and clearly ascertained Dy the pleadings on both sides, that the court from them is [268] enabled to collect the respective merits of the parties litigant, and upon full consideration determines between them according to equity and good conscience.” “It is interlocutory, when some material fact is either not stated in the pleadings, so that the court cannot determine ‘ finally’ and makes a reference or directs an issue, and, in the mean time, suspends final judgment until the fact is so ascertained, as to enable it to pronounce finally.” We have examined the cases referred to by counsel, on this point. In Johnson v. Everett, 9 Paige, 638, the chancellor decided the conveyances void, as against the judgments, but did not decree their payment, or the costs, nor was the receiver appointed under the decree directed to do so. This was not final. In Travis v. Waters, 12 Johns., the decree was for conveyance of part of the lands, and it was referred for an account of the quantity of land to be conveyed, and of the payments, and of the balance, if any was due, on the payment of which the conveyance was to be made. The question of costs was reserved until the coming in of the report. So in Kane v. Whitlock, 8 Wend., the decree settled the main point in controversy, that the conveyance was a mortgage, and not an absolute deed, but directed a reference to investigate and report the amount for which it should stand as a security. In Jaques v. Methodist Church, 17 Johns., after the decree, in 1815, “facts were to be ascertained,” and a further report, which became the basis of the final decree in 1818. In these cases, the court considered it a material element to the finality of a decree, “that all the material facts in the cause should have been ascertained.” In Goodwin v. Executors of Myers et al., 2 Mumf. 42, the decree directed the executors to sell the lands and report their proceedings, etc. In 4 Porter, 83, the decree was for sale of lands, required an account, no decree for costs. In none of these cases was the decree considered final. Turning now to those in this court (Robinson v. Johnson, 40 Miss. 500), the decree was for the sale of lands, to satisfy a vendor’s lien. This [269] was “final,” although there was no decree confirming the sale. In Cook’s Heirs and Creditors v. Bay, 4 How. 503, the decree vacated certain sales of the property of Cook, appointed a receiver to take charge of it, ordered an account, upon instructions given, ordered an issue to a jury to assess damages sustained by mismanagement of Cook’s estate, and reserved the question of costs, and all other questions, in the mean time. It is manifest that this decree was not final. The case of Harvey v. Bronson, 1 Leigh, 118, is cited. In that case a commissioner was appointed to sell the lands, who was to make report. “The rights of all parties were fully and finally settled, and the costs decreed.” The appointment of the commissioner was merely to execute the decree. In Terrence & Snyder v. Kerr, 27 Miss. 786, a decree of the probate court, ascertaining the amount due the distributees, and ordering its payment by the administrators, is a final decree. It only remains to test the decree of June, 1866, by the principles established in the authorities, especially those of this state. This decree ascertains the sum in the hands of Dobbs to be accounted for, also the claimants who are entitled to it, and their respective priorities. It orders the appellant to pay it over to these several parties, in the order named, until the whole of it is distributed. It directs the costs of the suit to be first paid out of the fund. It assumes that the court is in full possession of all the facts, so as to adjudicate between the contestants, according to equity and conscience. Ho reference to a master was necessary, nor was any made, to bring to the knowledge of the court, a new fact, or ascertain the truth of a contested one, in order to consider of it on a final decision. The decree ascertains what sum the appellant shall pay, to whom, and in what order he shall make it. It cuts off the largest creditor, Henderson, Terry '& Co., from participation, because their judgment-was fraudulent as to the complainant, and on all the matters proposed to be litigated by the bill is conclusive and final. Ho thing more remained to be done, except to [270] carry the decree into execution. We regard the final part of it, ordering the appellant to report his distribution and dealing with the fund, as a means simply of bringing to the knowledge of the court the fact that he had complied with it. It is like the report of a commissioner appointed to make a sale. nothing is better settled in our books than that a final decree cannot be set aside at a subsequent term, on motion. It can only be assailed on appeal or writ of error, or by original bill for fraud or other sufficient reason'. The disclosures made on the motion show that great injustice has been done the appellant by holding him to account, as the decree does, for $2,491 39, the money said to have been levied upon; and we would be inclined to open the decree, so as to enable him to make defense, if it could be done consistently with the principles and practice that govern the court. It is his own fault not to have appeared and made defense. We think the chancery court erred in regarding the decree of June, 1860, as interlocutory, and in sustaining the motion to set it, and the order of pro confesso against Dobbs. Wherefore these interlocutory orders of the chancery court áre reversed, and cause remanded.