Hall v. Lamb ( 1855 )

The opinion of the court was delivered by

Isham, J.

We entertain no doubt as to the power of the chancellor to vacate such a decree as was made in this case, even-after its enrolment, for the purpose of giving the defendants an opportm nity of defending the hill on its merits, when they have been deprived of that defense by mistake, accident, or even negligence. It was so expressly ruled by Ch. Kent; in Beekman v. Peck, 3 John. Ch. 415, and by Ch. Walworth, in Millspaugh v. McBride, 7 Paige 509, and in Kemp v. Squire, 1 Ves. 205. In the case of Wooster v. WoodhuU, 1 John. Ch. 540, Ch. Kent observed, that such applications were addressed to the discretion of the court, and they would be granted or refused upon considerations not at all affecting the merits of the case upon which the original bill was commenced.

The statute, p. 217, § 79, allows an appeal in chancery only from some final order or decree of the chancellor: and, not even then, when a final decree is made for non-appearance and neglect to answer the bill, nor on a decree of foreclosure of mortgage, except under a special permission of the court. The intention was, to allow appeals only in cases where the matter in controversy and on which the original bill was brought has been finally determined by the chancellor, so that, on an appeal from that decree, the whole case, on its merits, can be re-examined in this court. No appeal can be taken from any interlocutory order or decree, as that does not determine the merits of the case. The order of the chancellor, from which this appeal was taken, was purely interlocutory. It simply permitted the defendants to file their answer, and opened the case for trial in that court. The case is now pending before the chancellor. This appeal does not remove that case into this court, and, if we were to sustain it, we could only re-examine the question whether the chancellor properly permitted the defendants to file them answer, or whether, for not complying with the rules of practice in that court, the defendants should be precluded from all examination into the merits of their case. That question may or may not depend upon considerations affecting the merits of the original bill. It, in no sense, is a final order or decree in the case. For that reason, and from the fact that the application was addressed purely to the discretion of the chancellor, and should not be considered in this court, we think the appeal must be dismissed.