Griffin v. Orman (9 Fla. 22, 1860)

FORWARD, J.,

after reading the statement prepared by him, proceeded to deliver the opinion of the Court.

It is contended by the counsel for appellant, and conceded by Mr. Bush, one of the solicitors for.appellee, that the first error assigned, which is, that the decree should have been in favor of the respondent in the Court below instead of the complainant, opens the entire record for the consideration of the Court, and renders necessary an examination of this cause upon its merits, and the cases of LeBaron & Colquitt vs. Fauntleroy et al., 2 Florida, 276, and Life Ins. and Trust Co. vs. Cole, 4 Fla., 362, are cited to maintain this position.

Were this cause now for the first time before a Court of Appeal, these (¡ases would be conclusive, under the act of February 10th, 1832, which gives authority to the Appellate Court to pronounce “ such ¿judgment, sentence or decree as the Omrt below ought to hme given! An appeal, in equity is substantially a re-hearing of the cause, and the appeal opens the whole case as it is presented in the record, or it opens for consideration all prior or interlocutory orders or decrees connected with the merits of the final decree. But this case has once been acted upon by an Appellate Court, and in consequence thereof we are involved in some difficulty in determining how much of the case is opened by this appeal.

The first question presented by the statement of the case, as appears by the record and proceedings, is this: Is the decision of the Court of Appeals of the Territory of Florida, given at January term, 1838, upon an appeal then pending from an order in this cause, obligatory upon this Court, so far as to eonfine-ihis Court to a review of proceedings subsequent to the mandate of that Court, or whether this Court can go behind that mandate and the decree of the Superior Court affirmed, and render a decree according to its own view of the merits of the case ? This leads us to inquire how the decree of 1834 by the Superior Court, and the decree of the Court of Appeals of 1838, affirming in part said decree, are to be viewed. If they are together a final judgment in the cause, then this Court will be estopped from going behind the mandate of the Court of Appeals, however much wo may differ as to its provisions. Bret vs. Ming, 1 Florida, 454.

In determining whether these two decrees are together a fi/nal decree, we are led, from the view which this Court takes of them, to inquire:

1st. Whether the Com-t of Appeals in 1838, under the laws then in existence, had jurisdiction of the cause, and whether their adjudication is not altogether corcvm non judiee.

2d. Whether, admitting the Court of Appeals had jurisdiction, their decree, together with the decree of the Superior Court, is anything more than an interlocutory decree, and examinable by this Court like all other interlocutory decrees, and whether the last decree (that of Judge Douglas) in this case was the final decree.

In examining the first question it will be borne in mind that when that appeal was taken there was no statute of Florida authorizing appeals from interlocutory decrees as there now is, but the law was: “ That if a party in either of the Superior Courts of this Territory shall feel aggrieved by a final judgment, sentence or decree, made or pronounced, by emy or either of send Courts, it shall cmd may be lemful for such party, dec., to obtain an appeal to the Court of AppealsC &e. See Duval’s Compilation, page 108.

From this it will be seen that to give the Court of Appeals jurisdiction and give their acts validity, it was necessary that the decree of the Superior Court appealed from .should have been a final decree.

What is a “final decree?” Blaekstone, in his Commentaries, says: “ It very seldom happens that the first decree can be final,' or conclude the cause.” In speaking of things which retard the completion of decrees, he says: “ Frequently long accounts are to be settled, incumbrances and debts to be inquired into, a hundred little facts to be cleared up, before a decree can do full and sufficient justice. These matters are always, by the decree on the first hearing, referred to a Master in Chancery to examine, and then he is to report the facts, as they appear to him, to the Court. This report may be excepted to, disproved and overruled, or otherwise is confirmed and made absolute, by order of the Court.” 3 Black. Com. page 353.

“ A decree is final when all the circumstances and facts material and necessary to a complete explanation of the matters in litigation are brought before the Court, and so fully and clearly ascertained by the pleadings on both sides that the Court is enabled from tiience to collect the respective merits of the parties litigant, and upon a foil consideration of the case made out and relied upon by each, determines between them according to equity and good conscience.”

“ A decree is interlocutory when it happens that some material circumstance or fact, necessary to be made known to the Court, is either not stated in the pleadings or so imperfectly ascertained by them, that the Court, by reason of that defect, is unable to determine finally between the parties ; and therefore a reference to or an inquiry before a Master,” &c. 1 Harrison’s Ch. Pr., page 420.

“ But a decree is final, in the sense of the rule, which finally adjudicates upon all the merits of the controversy, and leaves nothing further to be done but the execution of it.” Story’s Equity Pl., § 408.

.It is said by Judge Spencer, in Jaques vs. Methodist Episcopal Church, 17 Johnson, 558, that no case can be found in which a decree directing a reference to a Master, or a feigned issue, for the purpose of ascertaining any material fact in. the case, has been held to be a final decree.

A decree to refer is not final. There must be a report; and a final decree upon it. 10 Vesey, 34; 2 Cranch, 33.

It is true the decree of the Superior Court does not direct the Master to report; but it does reserve questions until the coming in of the report; to wit, the disposition of so much of said sum and amounts as have not been paid. But does this dispense with the necessity of a report or confirmation of the report?

It seems it was thought necessary to have a report and confirmation of it, as Judge Douglas required, before he would enter a final decree in the Circuit Court.

This reference to the Master was not merely to calculate ■ interest or state an account upon fixed data. On the contrary, he was to “ ascertain the amount still due and unpaid,. with the interest thereon, up to the date of this decree,., and all swns due and owing Toy said complainants as afore scdd, contracted before tiie 14th January, 1829.” lie was also to ascertain “tlie amounts p