1. The rule laid down in
Forgay v.
Conrad, 6 How. 204, as to what constitutes a final
decree for the purpose of an appeal recognized as the true rule on
the subject.
2. Hence, where a bill related to the ownership and transfer of
certain stock, a decree was held to be final when it decided the
right to the property in contest, directed it to be delivered by
the defendant to the complainant by transfer, and entitled the
complainant to have the decree carried immediately into execution,
leaving only to be adjusted accounts between the parties in
pursuance of the decree settling the question of ownership.
This was a motion to dismiss an appeal from the circuit court
for West Tennessee, on the ground that the decree from which it was
taken was not final.
The record showed that the controversy related to the ownership
and transfer of two hundred and four shares of the stock of the
Memphis Gaslight Company, and to the rights of the parties under
contracts relating to the purchase, sale, and transfer of the
stock.
Page 74 U. S. 343
The decree directed that Dean, the defendant below and appellant
here, transfer forthwith upon the books of the company one hundred
and ninety-four shares of the stock to one of the plaintiffs below,
who are appellees here, and ten shares to another. It directed
further that account be taken and stated as to the amount paid and
to be paid for the stock and as to dividends accrued, and to be
credited under the contracts between the parties. This decree was
rendered on the 12th of March, 1868, and appeal was allowed on the
same day. Bond was given on the 23d.
Page 74 U. S. 344
THE CHIEF JUSTICE delivered the opinion of the Court.
The question is whether the decree in this case was final for
the purpose of appeal.
The eighth rule of the Court, prescribing the practice of the
United States courts in equity, directs that
"If the decree be for the performance of any specific act, it
shall prescribe the time within which the act shall be done, of
which the defendant is bound to take notice,"
and that
"on affidavit by the plaintiff of nonperformance within the
prescribed time, the clerk shall issue a writ of attachment against
the delinquent party, from which he shall not be discharged
Page 74 U. S. 345
unless on full compliance, or by special order enlarging the
time."
In this case, the decree directs the performance of a specific
act and requires that it be done forthwith. The effect of the act
when done is to invest the transferees with all the rights of
ownership. It changes the property in the stock as absolutely and
as completely as could be done by execution on a decree for sale.
It looks to no future modification or change of the decree. No such
change or modification was possible after the term, except on
rehearing or by bill of review in the circuit court or through
appeal in this Court.
So far as the court below was concerned, the decree in the case
determined the principal matter in controversy between the parties.
And since the decree could not be changed except through a new and
distinct proceeding, it determined that matter finally.
Why, then, must it not be regarded as a final decree within the
meaning of the acts of Congress providing for appeals?
The eighth rule of practice to which we have referred certainly
regards such a decree as that now under consideration as final in
respect to the act to be performed.
But it is insisted that this Court has held that no decree which
does not completely dispose of the whole cause is final, and that
this decree, though disposing completely of the controversy as to
the ownership of the stock, is not final because it directs certain
accounts to be taken.
It is true that this Court has always desired that appeals be
taken only from decrees which are not only final but complete, and
has, upon one occasion, at least, directed the attention of the
circuit courts to the expediency and importance of refraining from
making final decrees on any part of a cause, however important,
until prepared to dispose of it completely. Such a course would
undoubtedly save much inconvenience both to the circuit courts and
this Court and diminish largely the expense of litigation to
suitors.
And it may be true that under the influence of these
considerations, the degree of finality essential to the right of
appeal
Page 74 U. S. 346
has been sometimes pushed quite to the limit of construction.
But we think that the current of decisions fully sustains the rule
laid down by the late Chief Justice in the case of
Forgay v.
Conrad, and which we again declare in his own language:
"When the decree decides the right to the property in contest
and directs it to be delivered up by the defendant to the
complainant or directs it to be sold, or directs the defendant to
pay a certain sum of money to the complainant, and the complainant
is entitled to have such decree carried immediately into execution,
the decree must be regarded as a final one to that extent, and
authorizes an appeal to this Court, although so much of the bill is
retained in the circuit court as is necessary for the purpose of
adjusting by further decree the accounts between the parties
pursuant to the decree passed."
The reasoning in the case just cited fully vindicates this rule,
in our judgment, as a sound construction of the acts of Congress
relating to appeals, and is sustained by the authority of several
decisions.
*
And it is quite clear that the appeal under consideration is
within this rule. The decree for which it was taken decided the
right to the property in contest, directed it to be delivered by
defendant to complainant by transfer, entitled the complainant to
have the decree carried immediately into execution, leaving only to
be adjusted accounts between the parties in pursuance of the decree
settling the question of ownership.
It follows that the motion to dismiss must be
Denied.
*
Ray v. Law, 3
Cranch 179;
Whiting v. Bank United
States, 13 Pet. 6;
Michoud v.
Girod, 4 How. 505.
See
also Orchard v.
Hughes, 1 Wall. 657;
Milwaukee
& Minnesota Railroad Co. v. Soutter, 2 Wall.
440;
Withenbury v. United
States, 5 Wall. 821.
