Merle v. Andrews

4 Tex. 100

• Court: Texas Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

Lipscomb. J.

The second and fourth errors may be considered together. We will inquire what was the character of the decree entered up by the court in this case at the Pall Term, 1845. Was it such an adjudication of the matters embraced in it as to settle the rights of the parties as to those matters? If it was, it could only be set aside by a bill of review or be reversed on appeal. The principal object of the suit was to compel the administrator of Andrews to-transfer all the lands that t-lio estate liad received as agent for the plaintiff, and to turn over to the plaintiff titles to such as stood in the plaintiff’s name, and such evidences of debts due the plaintiff from various individuals, and to account for any balance of money in the hands of the agent, was called for at the same time; but it is very evident that from the very large amount of the debts due from individuals and the quantity of land shown by the proceedings that the two first were the principal objects sought by the petition, and the account for any balances in money due him from Andrews was but of secondary or minor consideration. And whatever might or should be the judgment of the court on this last matter could have no influence on the matters embraced and adjudicated in the decree of 1845. As to such matters, then, it seems the decree was final. To test this decree, whether it was final or only interlocutory, -we will inquire if it was in a condition, as it stood, to sustain the jurisdiction of an appellate court by an appeal or writ of error. The case of Porgay et al. v. Conrad, in the Supreme' Court of the United States, is in principle believed to be very much like the one under consideration. ■ In that case the object of the-bill was to set aside sundry deeds made by Banks for lands and slaves which the complainant charged tó be fraudulent, and for an account of the routs and' profits of the property so conveyed, and also for an account of sundry sums of money which he alleged had been received by one or more of the defendants, as specifically charged in the bill, which belonged to the bankrupt’s estate at the time of his bañlcruptcy. The ease was proceeded in until it came on for hearing, 'when the court passed a decree declaring certain deeds therein mentioned'to bo fraudulent and void, and directing the lands and slaves therein mentioned, to be delivered up to the complainant; and also directing one of the defendants named in the decree to iiay him §11,000 recovered from the bankrupt in fraud of his creditors, and that the complainant do have execution for lite several matters as aforesaid, in conformity with law and the practice prescribed by tiie rules of tiie Supreme Court of the United States. Tiie decree then directs that the master take account of the profits of the land and slaves, and an account of certain money not accounted for by one of the defendants, and concludes : “And so muohof the said bill as relates to matters hereby referred to the master for a report is hereby retained for further decree' in the premises.” On an appeal from this decree a motion was made to dismiss it for want of jurisdiction. Chief Justice Taney, who delivered the opinion of the court overruling tiie motion, in discussing,the character pf the decree, says : “In tiie case of Whiting v. Tiie Bank of tiie United States (13 Pet. R., 52) it was held that a decree of a foreclosure and sale of mortgaged premises was a final decree, and the defendant entitled to his appeal, without waiting for tiie return and confirmation of the sales by a'decretal order. And this decision is placed by tiie court upon the ground tiiat tiie decree of foreclosure and sale was final upon the merits, and the ulterior proceedings but a mode of executing the. original decree. The same rule of construction was acted on in the case of Marelianrt et al. v. Girod (4 How. R., 503.”) The Chief Justice proceeds : “ Tiie case before ns is a stronger one for an appeal than the case before mentioned. For here the decree not only .decides tiie title to tiie property in dispute, and annuls the deeds under which tiie defendants claim, but also directs the property in dispute to be delivered up to the complainant, and awards execution. And according to tiie last paragraph in the decree, tiie bill is retained merely for tiie purpose of adjusting.-tlie accounts referred to the master. In all other respects tiie whole of the matters brought into controversy by tiie bill are finally disposed of as to all of the defendants, and the bill, as to them, is no longer pending before tiie court. And the decree which it passed could not have been afterwards-reconsidered or modified in relation to (lie matters decided, except upon a petition for a rehearing within the time prescribed by tiie rules of this court regulating proceeding in the Circuit Court. If these appellants, therefore, must wait until tiie accounts are reported by the master and confirmed by. the court, they will be subjected to irreparable injury; for the lands and slaves which they claim will be taken out of their possession and sold, and the proceeds distributed among tiie creditors of tiie bankrupt, before they can have an opportunity to be heard in. this court in defense of their rights. We think;-upon sound principles of construction as well as upon the authority of the cases referred to, that such is not tiie meaning of the acts of Congress; and when tiie decree decides the right to the property'in contest, and directs it to be delivered'up by tiie defendant to the complainant, or directs if to be sold, or directs defendant to pay a certain sum of money to tiie complainant, and the complainant is entitled to have such decree immediately carried into execution, the. decree must be regarded as a final one to that extent, and authorizes a¿ appeal- to this court, although so much of tiie bill is retained in .the Circuit Court as is necessary for tiie purpose of adjusting, by a further- decree, tiie accounts between the parties, pursuant to tiie decree passed.” (Forgay et al. v. Conrad, 6 How. R., 202.)

Tiie Supreme Court of Alabama lias appellate jurisdiction only. In the case of Weathered et al. v. James, in that court, on tiie question whether the appeal ought not to be dismissed for want of jurisdiction,-on account of tiie decree not being final, Mr. Justice Ormond, who delivered tiie'opinion of the court, says: “If a decree is final when it ascertains all tiie rights of the parties in litigation, then this is a final decree. The acts which are to lie done, as the decree points out the mode and settles the principles by which fhese are to be regulated, are in their character ministerial, subject, to be sure, to tiie control and supervision of the chancellor. The decree in this case even settles the question of ' costs, and leaves nothing to bo done in future but'tb carry into effect tiie principles settled by the decree. If the reference liad'b’een to tiie master, for tiie purpose of ascertaining some fact on which to base a decree affecting the rights of the parties, it would be interlocutory in its character. No conceivable object could be attained by a contrary decision, which would only promote litigation and expense. In the ease of Travis and Others v. Waters and Others, (12 Johns R., 500,) a decree almost precisely similar to this was held a final decree.” (2 Ala. R., 175: Harrison’s Practice, 622: 1 Mon. R., 137; 33 Pet. R., 6; 3 Cr. R., 179.)

In comparing the two eases just cited with the one before us, and the principles discussed and rules laid down by Chief Justice Taney in the ease in 6 Howard, and by Justice Ormond in Weatherford et al. v. James, there can be no doubt that the decree reudered in November, 1845, was final, and such as would have allowed an appeal for revision in this court. In that decree lauds were to be conveyed by Butler, the administrator of Andrews, and dioses in action to be assigned; and in all probability this was executed long' before the motion was made to set aside the decree, or the order of the court'to go into a trial of these matters again. He was hound to perform the decree, and it was the same as if execution had been awarded in so many words; and in this case the decree even embraced the costs of the suit. Such being the character of the decree, we will next inquire if it was competent for the court below to set it aside on motion or of its own will.

The principle is believed to be applicable to courts of law and chancery that •a judgment of the one and the final decree of the other, after the adjournment of the court, cannot be set aside without proceedings having that object directly in view. Under certain statutes in some of the States a mistake may be cor-’ .rected; but it would have a bad tendency in protracting litigation and enhancing expense and costs of suits to allow the judgment of one term of tire court to be set aside at another. In the case of the Assigns of Medford v. Dorsey the award of arbitrators had been made the judgment of the court. .'The award was for a certain amount to be paid, and an indemnity was to be given by the plaintiff. By mistake, perhaps, the judgment was entered up for the money without the condition of indemnity. On a motion to si low cause why the judgment should not be vacated, the judgment having been improvi- dently entered, until the indemnity was given, Judge Washington said: “This judgment, having been entered at a former court, though probably improvi- . dently done, and might have been refused, had it been opposed, until the indemnity was given, cannot now. bo vacated. If there was an error in entering it, the court, at a subsequent term, cannot set it aside, unless it was entered by the misprision of the clerk, by fraud or the like.” (2 Wash. C. C. R., 433.) In the ease of Pield v. Ross, Executor, a decree had been entered up in favor of a party seeking to enforce a lien on lauds for the satisfaction of a debt. It ordered the sale of land and the appropriation of the proceeds to pay the debt. This decree was afterwards set aside and another entered, and the sale of the .land under the first set aside merely by petition. Judge Mills, after referring to the fact that a final decree had, in point of practice, been treated as interlocutory, and that it had been noticed in the cases of Shelby and Roberts v. Smith’s Heirs and Executor, (2 Marsh. R., 504,) Lane v. Lane, (2 Lift. R., 258,) and Watson v. Thomas, (Litt. S. C., 248,) he adds: “The two last cases we deem in point as to the principle which ought here to govern, and they settle the matter that this decree is final and could not be reached by petition and answer; and the decree of 3S11 can only be deemed a decretal order to effectuate what the court had determined.” He adds: “It has been urged that the impropriety of the first decree is apparent on its face. If so, it must be left to revision by writ of error or bill of review, and not in the present form.” (1 Mon. R., 137.) In the case last cited it was further urged that the parties who had come in subsequent to the first decree, and had procured it to be set aside, wore not legally served with the process by publication, as it had not been published the time required by law, and that therefore the decree so first made was void. The judge says, “ Whether it he void or voidable, it cannot he contested in this way.” Such is tlie reputation of this eminent jurist, that this •question might with entire safety Vest on his opinion. It will, however, be found on an'examination of tlie authorities .that he is fully sustained by Judge Story, Smith’s Chancery Practice, and every other; writer on equity jurisprudence to which I have been able to have access; That after a final decree enrolled, such decree can only be readied by a writ of error or appeal or by a bill of review. Judge Story says: “Abill of review is in the nature of a writ of error, aud its object is to procure an examination jan-d alteration or reversal of a decree made upon a former bill, which decree has been signed and enrolled.” He says further: '‘Tlie enrollment of decrees in England is now little known in practice; therefore bills of review are rarely brought. But as the same principles are generally applicable to all tlie varieties of this species of bills, we shall state them mider tlie leading head of bills of review. Indeed, there is more reason for so doing, because in most of ihe State courts of equity in America, and certainly in the courts of Ihe United •States, all decrees in equity as well as judgments at law are matters of recortl,'and are deemed to be enrolled as of tlie term of tlie court at which they are passed, whether actually •enrolled or not.” Again lie says, “A bill of review also lies only after a final decree.” (Story Eq., secs. 403, 412.)

There can be no question but that the decree of 1845, on the authorities cited, had passed beyond the control of the District Court, unless by a bill of review.

There is no pretense that there has been a bill of review on any proceeding -of the like character in this case. Tlie ruling of the court on which the decree was set aside by no liberality of construction slioWS the remotest analogy to a bill of review, and cannot claim any of its attributes. But even if, instead of the order of Ihe court of its own motion-ruling a trial of the whole matter of the bill, a bill of review had been offered'to the court, it should have been disallowed, because at that time it was barfed by limitation. The 9th section of the act of limitation of 1841, enacts “that no writ of error or super-sedeas shall be granted to any judgment at law, ñor shall a bill of review be ■ granted to any decree pronounced in equity, after two years from the time such judgment or decree shall have been made final.” At tlie time, then, of the action of the District Court, it liad not lost all control over the decree, and it was as much beyond its reach as if it had never been before it or if it had been -affirmed by tiiis court. It was a question;-so far-as that court was concerned, res adjudícala, and whether rigid or wrong, not to be inquired into. And the District Court had nothing'before it on which to act between the parties but tlie reserved equity on the amount of' money due from the agent at his death to his principal, the complainant.

It is said that, this being a moneyed demand, the petition should have averred that it had been presented to the administrator aijiirejected by him before suit could liave been brought for it against the administrator, and that it was improperly joined in the bill with the other matters of complaint. Tlie complainant being compelled to seek relief on the principles of' .equity against the administrator for the other matters, and as he had- no way of knowing how much, if any, money had been collected by his agent, we can see no objection to this matter being embraced in the bill. And'as'from the nature of tlie demand it was not possible that lie could present it to. the administrator in a shape that it could liave been allowed, there was no liee'essityToT presenting it at all. It depended mainly on evidence to be furnished from tlie books and papers of the intestate in the hands of the administrator, whether anything- could be proved. Under such circumstances we believe that tlie statute of non-claim did not apply to it.

At the time the decree of 1S45 was passed this matter was reserved until (lie. next term. It was continued from term, to term some!hues without showing- by what party; whenever the record states by which parly it was continued,'it i.s shown to be bjr the defendant. And at the Spring Term of ISIS it was continued, with leave to amend. At the Fall Term, 1S-Í8, (lie defendant filed his exceptions, which were overruled by (he court; and at the same lime defendant filed his motion to set aside and vacate the decree of 15th of November, 18-15, which was also overruled. The overruling (he motion to vacate the decree of November, 1845, was correct, not only because it could not be opened on motion, if it could have been at all, but only by bill, and also because that more than two years had elapsed since that decree had passed. At the same term a decree was entered against the defendant for an amount some•thing less than the amount reported'by the referees, which was.on motion of the defendant set aside. At (ho Spring Term, 1849, (he court, although at a previous term it had refused to vacate aiul set aside the decree of 1845,' seems of its own accord, mero mota, to have required the parties to go info a trial of the whole matters contained in the bill, regardless of the decree, made' in November, 1S45; (o which the plaintiff objected, and his objection was overruled. The whole of this proceeding was wrong and unauthorized by any principle or rule of practice known to this court. The court, as has before been observed, had nothing before it for trial but the balance of money reported to be due. If the exceptions presented any fact that should be tried by a jury to show (hat amount not to be due, it should have been tried by a jury if demanded by either party. If no such fact was shown, which seems to have been the case, as the court overruled the exception, there was no reason perceived why (he court should liave withheld its decree, or after making it, set it aside, again, unless it can bo supposed that the court believed that the debt or money demand was barred by not having been presented to the administrator within the time prescribed bylaw. This, we have seen, is an objection that cannot be sustained. It was said, however, that this moneyed demand was barred by the general statute of limitations, because suit had not been brought within two years from the time the cause of action accrued. (Sec. 1, Law Lim., 1841.) We are not informed by the evidence at what time the money went into the hands of the agent, nor at what time the principal had notice of its being in his hands. The statute surely could not begin to run until the principal had notice that it had been collected. And a majority of the court believe that between an agent and his principal it does not commence running until a demand lias been made of the agent. Until that demand has been made, it seems to me that the possession of the money by the agent would be the possession of his principal.

It will bo seen that from the view we have taken of the character of the decree of November, 1S45, neither the alienage of the complainant nor the maladministration of the first administrator can be looked into in this case. Exceptions of that character could only have been presented in (lie form and within the time prescribed bylaw. If. however, the question of alienage made by the defendant in argument had been fairly presented at the proper time and ■ place, the only difference it could have made in the decree would have been to have ordered the sale of the land and the, payment of the proceeds to the complainant; because if it is admitted that an aiien could not hold land, and that it would therefore have been error to decree a conveyance to him, yet there can be no doubt, if those, lands were taken in payment of debts due him, a court of equity would have held that he could not be deprived of the proceeds of such land on sale, of them, and would have ordered (hem (o be sold and the proceeds paid over to him. The court erred in ruling a trial of the matters that had been adjudicated by the, decree passed in November, 1815, and in all the proceedings had subsequent to such ruling. And the judgment is reversed down to (lie overruling the exception taken by the' defendant (o the report of referees on the moneyed demand, and the cause', is remanded to the court below, with instructions to dispose of the equity reserved on the moneyed demand, and to decide tiie same in accordance with*and in conformity to this opinion.

Korn -i:>. — Th<* cii.imeuT of a judgment must bo tested by its*operation on the objects sought ’ to b - attaint .t íd* i,ic prur-redings. If the cuuse.be determined on its merits, if the rights couinM-enod (■ >ii. a '..u- parties i>c sett loti, the judgment uull bo, final, although ulterior pro-O'vdmg-* t.* ■•>!,', tl«i* i> «l'iinent into effect mav be required/ (Cannon v. llomphill, 7 T., 18-1; Patn-dv r.ui . ¡', T.,' McFarland v. Hall, 17 T., 676; Martin v. Crow, 28 T., 613; Harmon v.Bynum, 3 T., 234) .Notij •[ 1.— r> 'V n -end ■». Hunger, 0 T., 300; Goss -y. McClaren, 17 T., 107. Isom 15. — Ivin- o. Cassidy, tfi> T., 5,jL.

Judgment reversed.