Platt v. Stewart

Hon. Ward Hunt, Justice.

The assignee moves to dismiss the appeal in this case, on the ground that it is prematurely brought.

It is insisted, 1. That there can be no appeal under the -.eighth section of; the bankrupt act, unless, the decree from which the appeal is taken is a final decree. This was held to be the law in Clark agt. Iselin (9 Blatch., 177), and I cannot doubt that the holding was correct. A case that may be appealed from the district to the circuit court may be appealed from the circuit to the supreme court of the United States.

A system which will permit a case thus to be carried up in a fragmentary condition, and to be separately appealed in parts, and from time to time, would be found to be impracticable. The courts would be entirely clogged and litigation would never come to an end.

In Beebe agt. Bussell (19 How., 284) the supreme court of the United States say: “It has been the object of this court, at all times, although an accidental deviation may be found, to restrict the eases which have been brought to this court, either by appeal or by writ of error, to those in which the rights of the parties have been fully and finally determined by judgments or decrees in the courts below, whether they were cases in admiralty, in equity or at common law.” Various cases are cited in support of the position taken.

It is insisted, secondly, that the decree in this ease is interlocutory merely, and not final. In the case already cited from 19 Howard, the court say: “A decree is understood to be interlocutory, whenever an inquiry as to a matter of law or fact is directed, preparatory to a final decision (Opinion, 322). * * * The most usual ground for not making a perfect decree, in_the first instance, is the necessity which frequently exists for a reference to a master of the court, to make inquiries, or take accounts, or sell estates, and adjust other matters which are necessary to be disposed of .before a complete decision can be come to upon the subject-matter of the suit; when a decree finally decides and disposes of the whole merits of the case, and reserves no further questions or directions for the future judgment of the court, or that it will not be necessary to bring the cause before the court again for its final decision, it is a final decree.” It is added, that a decree may be final, although directing a reference, if all the directions depending upon the result of the master’s report are contained in the decree, so that no further decree, of the court will be necessary, upon the confirmation of the report, to give the parties the full benefit of the previous decision of the court (Mills agt. Hoag, 7 Paige, 18).

In the decree before us, it is adjudged that the conveyance by the bankrupts to Mr. Stewart was void, and that reconveyance should be made of the same to the assignee, and also that Mr. Stewart should account for and pay over to the plaintiff the rents and profits thereof, deducting lawful and proper credits and allowances from the time he acquired title to, and took possession of, the same.

It is further adjudged that the chattel mortgages given to Mr. Stewart are void, and that the proceeds of the same, now in court, belong to the assignee. Certain judgments set forth are declared not to be valid liens upon said fund, and certain judgments set forth are declared to be valid liens on the real estate described.

It is further ordered that the three sheriff’s officers named are entitled to compensation for their services in levying upon said property; and for the purpose of ascertaining said compensation a reference is ordered to a master,, to inquire into and hear the evidence of the different parties in interest as to said matter, and to report with his opinion what would be a proper sum to be allowed therefor, and that such further decree may be made on those questions as shall seem, proper on the coming in of such report.

A reference was ordered to the same master to- take and state an account _ of the rents and profits of the houses and lots mentioned; in such hearing to require the attendance of witnesses and parties, and that he report to the court with, all convenient speed.

The two references provided for are important in their ¿character, involving the examination of disputed facts and the .settlement of complicated questions of law; what shall be held to be the rule of recovery for the rents and profits in such case may, and ordinarily does, depend upon a great variety of facts, and involves results essentially different in different cases.

It may be that the limit of recovery will be that of actual receipts; it may be of what the holder ought to have received. The question of' allowance for betterments or improvements sometimes involves the nicest questions of law.

These remarks are applicable also to the question of compensation to the sheriffs. All these questions, upon the coming in of the master’s report, must be submitted to and be passed upon by the court. In no just sense, therefore, can the decree in these respects be deemed a final one.

It is obvious, upon the face of the decree, that it was not intended as' a final decree; thus, although the conveyance to Mr. Stewart is adjudged to be void, it is not ordered that he deliver, at once and unqualifiedly, the deeds of reconveyance to the assignee; on the contrary, such reconveyance is not to be made until twenty days after service of a certified copy of a decree hereafter to be entered, after such accounting as the final decree in the cause.” The same language is repeated in another part of the decree:

In this respect the present decree differs from that in Forgay agt. Conrad (6 How. R.), where the decree decides the whole matter in controversy and directs the immediate delivery of the property to the party entitled.

That that case does not control the present is apparent from the subsequent case of Beebe agt. Russell (19 How., 283), where it was held that a decree referring it to a master to take an account of rents and profits upon evidence and from an examination of the parties, and to make allowances affecting the rights of the parties, and to report the results to the court, was not a final decree.

A dismissal of this appeal involves only a delay until the completion of the proceedings referred to.

The motion to dismiss the Stewart appeal is granted. The various counsel then were heard on the motion to dismiss the appeals of the execution creditors. The court took time to consider, and delivered the following opinion :

Hon. Ward Hunt, Justice.

The appeal of Hr. Stewart having been dismissed, he is no party to this record in the circuit court; yet this court are called upon by the execution creditors, on their appeals, to dispose of the fund in court, the proceeds of the furniture of the Metropolitan hotel, on which Mr. Stewart claims he has a valid chattel mortgage, which, it is true, the court below have decided to be invalid, but from which decision Mr. Stewart desires and intends again to appeal when the decree is sufficiently final in the court below for him to do so.

It is evident, therefore, that to hear these execution creditors on their appeal now, might be the means of depriving Mr. Stewart of his rights to that fund, without his having an opportunity to be heard on appeal, although strenuously endeavoring to do so. Mere notice to him of the argument of the appeal in this court is not enough; he is entitled to be a party to the appeal on the record.

Then, again, a cause cannot be taken up in an appellate court in this fragmentary way. It must be final as to all.

, Then, again, the assignee who claims the whole of this fund in the court below is entitled to have but one controversy between all the parties claiming interests therein. It would be an anomaly for one portion of the claims to be litigated in this court and another in the court below, yet the different claimants not bound by each -other’s proceedings, unless parties to the record. The assignee is entitled to implead and have a decision as to all in the one tribunal, before it can be reviewed in an appellate court.

The decree appealed from must be final to all parties, and as to all rights claimed in the litigation sought to be argued anew on appeal.