Forgay v. Conrad - 47 U.S. 201 (1848)
U.S. Supreme Court
Forgay v. Conrad, 47 U.S. 6 How. 201 201 (1848)
Forgay v. Conrad
47 U.S. (6 How.) 201
A decree of the court below that certain deeds should be set aside as fraudulent and void; that certain lands and slaves should be delivered up to the complainant; that one of the defendants should pay a certain sum of money to the complainant; that the complainant should have execution for these several matters; that the master should take an account of the profits of the lands and slaves, and also an account of certain money and notes, and then said decree concluding as follows, viz.,
"And so much of the said bill as contains or relates to matters hereby referred to the master for a report is retained for further decree in the premises, and so much of the said bill as is not now, nor has been heretofore, adjudged and decreed upon, and which is not above retained for the purposes aforesaid, be dismissed without prejudice, and that the said defendants do pay the costs"
was a final decree within the meaning of the acts of Congress, and an appeal from it will lie to this Court.
But a decree that money shall be paid into court, or that property shall be delivered to a receiver, or that property held in trust shall be delivered to a new trustee appointed by the court is interlocutory only, and intended to reserve the subject matter in dispute from waste or dilapidation, and to keep it within the control of the court until the rights of the parties concerned can be finally adjudicated. From such a decree, no appeal lies.
The attention of the circuit courts is called to the propriety of merely announcing their opinion in an interlocutory order, and withholding a decree setting aside titles and conveyances until the case is ready for a final decree.
The difference between the English and American practice upon this subject explained.
Where the defendants claimed separate pieces of property, conveyed at different times by separate conveyances, and the decree against them was several, it was not necessary for all to join in an appeal.
The facts in the case are set forth in the opinion of the Court.
Mr. Sergeant moved to dismiss the appeal because the decree of the court below was not final, and because the appeal was not regularly brought up. On the second point, he said that there were several defendants, one only of whom had appealed. But all the parties must join. 32 U. S. 7 Pet. 399. He referred the court, however, upon this point, to Todd v. Daniel, 16 Pet. 521. A case must not come up in fragments. 28 U. S. 3 Pet. 307; 3 U. S. 3 Dall. 188.
To show that the decree was not final, he referred to The Palmyra, 10 Wheat. 502; Chace v. Vasquez, 11 Wheat. 429; Brown v. Swann, 9 Pet. 1; Young v. Grundy, 6 Cranch 51; Rutherford v. Fisher, 4 Dall. 22; Lea v. Kelly, 1 Pet. 213; Young v. Smith, 12 Pet. 287.