HUMISTON v. STAINTHORP

Mr. Gifford, in favor of the motion of dismissal: An appeal lies only from a final decree: this is an interlocutory one. A final decree in equity is one which finally decides and disposes of the whole merits of the case, and reserves no questions or directions for the future judgment of the court from which an appeal could be taken. This court will not allow a case to be divided up into a plurality of appeals.

In The Palmyra, restitution with costs and damages was decreed, and an appeal taken before the damages had been assessed. The court held that the decree was not final, and dismissed it. They say, "The decree of the Circuit Court was not final in the sense of the act of Congress. The damages remain undisposed of, and an appeal may still lie upon that part of the decree awarding damages."

The case of Barnard et al. v. Gibson, was one on letters patent. The decree referred it to a master to ascertain and report the damages. An appeal was taken; a motion made to dismiss it, and the motion was granted. The court say, "The decree in the case under consideration is not final within the decisions of the court. The injunction prayed for was made perpetual, but there was a reference to a master to ascertain the damages by reason of the infringement."

In Perkins v. Fourniquet, the decree was that the complainant was entitled to two-sevenths of certain property, and referred it to a master to take and report an account of it, reserving all other questions until the coming in of the master's report. It was held that this was not a final decree on which an appeal could be taken.

In Pulliam et al. v. Christian, the decree set aside a deed and directed an account from trustees. This was held not to be a final decree, and an appeal from it was dismissed.

In Craighead et al. v. Wilson, a bill was filed claiming property as heirs. A decree was made, which, among other things, referred it to a master to take an account. The court held that this decree was interlocutory, and that no final decree could be made until after the coming in of the master's report, and the appeal was dismissed.

In Crawford v. Points,^fn_ a decree was made directing an account. An appeal was taken before the accounting. On a motion to dismiss the appeal, the court say, "The decree is not final . . . An account is directed to be taken of the rents and profits,c. While these things remain to be done, the decree is not final, and no appeal from it would lie to this court."

In Beebe et al. v. Russell,^fn† the court thus distinguishes between the two sorts of decrees: "A decree is understood to be interlocutory whenever an inquiry as to matter of law or fact is directed, preparatory to a final decision. When a decree finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree."

These cases seem conclusive.

Mr. Norton, contra.

I. The precise question whether an appeal may be taken from such a decree does not seem to have arisen in this court, but the principles which have controlled the decisions concerning appeals, establish the right of appeal from the decree herein.

In Ray v. Law,^fn‡ it was held (Marshall, C.J.), "That a decree for a sale under a mortgage is such a final decree as may be appealed from," although in such cases there follows a decree confirming the sale, and it may be for execution for a deficiency. That case was followed in Whiting v. Bank of United States,^fn§ the court saying, in reference thereto, "This decision must have been made upon the general ground that a decree, final upon the merits of the controversy between the parties, is a decree upon which a bill of review would lie, without and independent of any ulterior proceedings."

In Forgay v. Conrad,^fn where the decree set aside as void certain deeds of lands and slaves, and directed an account of profits, and expressly retained a part of the bill for further decree, it was held that an appeal from same was well taken.

In Barnard v. Gibson,^fn_ relied on by the other side, where the decree was for an injunction and an account of profits, and expressly reserved "the question of costs and all other questions" not specifically passed upon, it was held that from such decree an appeal would not lie; and in that case this court did not undertake to reverse its former decisions, but to abide thereby.

Now the decree in this case, though different from that in either of the cases thus referred to, is much nearer that in Forgay v. Conrad than the one in Barnard v. Gibson, for it fully disposes of the merits, without reserving any question whatever, and leaves nothing uncompleted but an accounting, like that in Forgay v. Conrad; and upon the principle established in those cases, the appeal was well taken. That principle is, that whenever a decree decides the merits of the controversy, it is final, for the purposes of an appeal, though ulterior proceedings have to be had and a further or additional decree yet remains to be made. Thus in Forgay v. Conrad, the court say of the decree therein, "undoubtedly it is not final, in the strict technical sense of the term," and then adopting a wider view of the act of Congress, lay down the principle that when a decree decides the right in controversy, and permits it to be carried into execution, it is pro tanto, final for the purposes of an appeal. And the only way of reconciling Barnard v. Gibson with that case is, that it reserved the question of costs and other questions.

II. An appeal from such a decree as this is, should be allowed:

1st. Because it disposes of the entire merits, and leaves nothing but a mere accounting.

2d. Because the court below has power to render and enforce such a decree (and the practice of rendering and enforcing such decrees has become very general), and unless an appeal be allowed therefrom, the right of appeal to this court is virtually annulled in this class of cases, where the decree is for the complainant.

3d. Because the accounting in such cases is necessarily tedious and expensive, and should therefore be postponed until the merits are finally disposed of; for if the decree be reversed the accounting becomes a needless waste of time and money, and even if it be modified, as to the nature or extent of the patent or of the infringement of same, such accounting becomes almost equally useless.