Where a case in equity was referred to a master, which came
again before the court upon exceptions to the master's report, the
court had a right to change its opinion from that which it had
expressed upon the interlocutory order and to dismiss the bill. All
previous interlocutory orders were open for revision.
The decree of dismissal was right in itself, because it
conformed to a decision of this Court in a branch of the same case,
which decision was given in the interval between the interlocutory
order and final decree of the circuit court.
The controversy between the parties had been at several
different times, in various shapes before this Court, as will be
seen by reference to
47 U. S. 6 How.
206,
48 U. S. 7 How.
160, and
55 U. S. 14 How.
313.
The case in 6 Howard was this:
The circuit court had decreed, on the 12th of April, 1847, that
a community of acquests and gains had existed between Perkins and
wife, during the marriage, and that the present appellants,
representing Mrs. Perkins, were entitled to an account.
Accordingly, the matter was referred to a master to ascertain the
landed property, and to divide it and report an account. This was
held by this Court to be an interlocutory order only, and not a
final decree, and the appeal was dismissed.
47 U. S. 6 How.
208. The mandate sent from this Court, after reciting the decree or
order appealed from, and the reference to a master, concluded
thus:
"You therefore are hereby commanded that such further
proceedings be had in said cause as, according to right and justice
and the laws of the United States, ought to be had, the said appeal
notwithstanding."
Under this mandate, the master took up the reference and made a
report awarding a large sum of money and a large amount of land to
Fourniquet and wife and Ewing and wife. Both parties filed
exceptions to the report. These exceptions were before the court,
upon argument, in February and March, 1852.
In the meantime,
viz., at January term, 1849, the case
of
Fourniquet v. Perkins was decided by this Court as
reported in
48 U. S. 7 How.
160. The circuit court appeared to consider this case as deciding
the points involved in a different way from that in which it had
itself decided them when referring the case to a master to state an
account. Upon hearing the exceptions, it therefore reversed the
former decree and dismissed the bill.
The complainants appealed to this Court.
Page 57 U. S. 83
It may be proper to mention that whilst this appeal was pending,
another branch of the case reached this Court, which is reported in
55 U. S. 14 How.
313.
Page 57 U. S. 85
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case came before the Court some years ago on an appeal from
an interlocutory order of the circuit court, which stated that the
appellants were entitled to recover certain claims set out in their
bill, and directed an account to be taken by the master. It is
reported
47 U. S. 6 How.
206. The appeal was dismissed upon the ground that an appeal would
not lie from an interlocutory order, and the case was remanded to
the court below with directions to proceed to a final decree. Upon
receiving this mandate, the circuit court proceeded to take the
account upon the principles stated in its interlocutory order, and
when the report of the master came in, exceptions were taken to it
on both sides. At the argument of these exceptions, it appears that
the court reconsidered the opinion it had expressed on the merits
in the interlocutory order, and believing that opinion to be
incorrect, dismissed the complainants' bill. The case now before us
is an appeal from that decree.
The decree is undoubtedly right, for it conforms to the opinions
expressed by this Court in relation to the matters now in
controversy in the case between Fourniquet and wife and the present
appellee, reported
48 U. S. 7 How.
160, and again in the case between these appellants and Perkins,
the appellee, in the case reported in
55 U. S. 14 How.
313. It is unnecessary to state here the facts in the present case,
or the matters in dispute, as they are fully set out in the cases
referred to, and especially in the one last mentioned. For in that
case the parties and the matters in dispute were the same with
those now before the Court.
The counsel for the appellants however objects to the decree of
dismissal, because it was made, at the argument upon the exceptions
to the master's report, and is contrary to the opinion on the
merits expressed by the court in its interlocutory order.
Page 57 U. S. 86
But this objection cannot be maintained. The case was at final
hearing at the argument upon the exceptions, and all of the
previous interlocutory orders in relation to the merits were open
for revision, and under the control of the court. This Court so
decided when the former appeal hereinbefore mentioned, was
dismissed for want of jurisdiction. And if the court below, upon
further reflection or examination, changed its opinion, after
passing the order, or found that it was in conflict with the
decision of this Court, it was its duty to correct the error. The
circuit court on this occasion has properly done so, and the decree
of dismissal must be
Affirmed with costs.
Order
This cause came on to be heard, on the transcript of the record,
from the Circuit Court of the United States for the Eastern
district of Louisiana, and was argued by counsel. On consideration
whereof, it is now here ordered, adjudged, and decreed by this
Court that the decree of the said circuit court in this cause be
and the same is hereby affirmed with costs.
