Edward C. Bellamy, et al., Appellants, v. Samuel C. Bellamy, Appellee, 4 Fla. 242

LANCASTER, Justice, delivered the opinion of the Court, as follows: This case comes by appeal from Jackson Circuit Court, and a motion is made to dismiss the appeal because the decree rendered in the case below is not final. The appellants, by counsel, contend that this Court has jurisdiction to entertain appeals in chancery cases from interlocutory decrees, and if not, that the decree rendered in this case is final and the appeal is well taken. Let us first consider the right of a party to appeal to this Court from an interlocutory decree. It is contended by counsel for appellant that the right to appeal may be inferred from the provisions of the 28th

section of the chancery act of November 7th, 1828, (Duval’s Compilation, 135, Thompson’s Digest, 461,) and that the 6th (properly 32d)

section in the same act, (Duval’s Compilation, 137 and Thompson’s Digest, 459,) which provides for rules of practice in chancery, gives to parties the same right of appeal, and in the same cases, in which appeals were allowed from the High Court of Chancery, in England, to the House of Lords. It may be here remarked that the 28th

section of the chancery act referred to, was passed solely to provide for enrollments of final decrees in chancery, and to invest them with the powers of lien in that

section mentioned, and to entitle a party to process or other proceedings thereon; and appeals and petitions for rehearing were but incidentally mentioned in the

section — not to provide or invest parties with rights which these proceedings might respectively secure, but simply, where a party had taken either of these steps according to law, to prohibit the enrollment and its consequent lien, and the final process which the other party might issue thereon. The view taken of the

section 32, in relation to the rules of practice is not more satisfactory ; for, conceding that the House of Lords entertained appeals from the High Court of Chancery, in England, upon interlocutory decrees, that was done on petition to the Lords, setting forth all the proceedings desired to be appealed from, which petition and its statements the Lord Chancellor was required by the Lords to admit or deny.' Being admitted, the Lords had the case before them and might, in the plenitude of unlimited power, proceed as they thought fit.

No such power is known to have been at any time vested in the late Court of Appeals or in this Court. That section, in terms, provides “ that the “ rules of practice in the courts of equity of the United “ States, as prescribed by the Supreme Court thereof under the act of Congress of the 8th of May, 1792, where pro- ■“ vision is not made by this act, shall be rules for the prac- “ tice of the courts of this Territory when exercising equity “ jurisdiction.

And when the rules of practice so directed ■“ by the Supreme Court and the provisions of this act do “ not apply, the practice of the courts shall be regulated by “ the practice of the High Court of Chancery, in England.” Now, if it be said that the right of appeal to the Supreme Court of the United States is not a right established by a rule of that Court, but a right given by act of Congress, and therefore not one of the rules adopted into practice here by the passage of the above recited section, so also, with equal force and truth, it may be said the right of appeal from the High Court of Chancery, in England, is not a rule of practice of said Court, but a rule of right ^imposed on the Court by the arrogated omnipotent power of Parliament.

Rules of practice are prescribed by the Courts, for the more safe and convenient transaction of business; but rules of right are prescribed by the Legislature, the better to ascertain what rights are reserved or secured to the person. We must, therefore, look elsewhere for the right of appeal. The fifth

section of the act of Congress, entitled “

an act to amend the several acts for the establishment of the Territorial government of Florida,” approved May 15th, 1826, after providing for writs of error and appeal to the Court of Appeals of the Territory on all final decisions of the Superior Courts arising under the Constitution and laws of the United States, where the matter is of the value of one hundred dollars exclusive of costs, goes on further to provide, “ and in all other cases writs of error and appeal may be taken and prosecuted from said Superior Courts to the “ Court of Appeals in such manner as the Legislative Coún- “ cil have directed or shall direct.” By

an act of the Legislative Council, entitled “

an act regulating the mode of suing out writs of error and prosecuting appeals in the Court of Appeals of the Territory of Florida,” approved November 12th, 1828, just five days after the chancery act before noticed was approved, the manner of taking appeals was provided for. As much of the first

section of that act as is here deemed necessary is in these words, viz : “ That “ if a party in either of the Superior Courts of this Territo“ry shall feel aggrieved by a final judgment, sentence or “ decree, made or pronounced by any or either of said Courts, “ it shall and may be lawful for such partir, at the time “ when such judgment, sentence or decree is rendered or “ pronounced, to obtain in Court, &c., his appeal.” See pamphlet Laws of the year 1828, page 44 — 5. This

section of this act, as far as after diligent examination we have been enabled to discover, was only repealed by

an act of the same title, approved February 10th, 1832, and which is now in force. By both laws an appeal is allowed only from a final judgment, sentence or decree. But it is contended the phrases were used loosely by the Legislature, and only meant to provide for appeals at common law and not in chancery.

The jurisdiction of the Courts'from whose decisions these laws meant to provide an appeal, extended as well to equity as law, and when the phrase is used, “shall feel aggrieved by a final judgment, sentence- or decree, made or pronounced by any or either of said Courts,” it is difficult to imagine the Legislature meant to-restrict the right of appeal to less than the extent of the jurisdiction appealed from. But the second

section of the act of February 10th, 1832, uses the terms judgment given,decree rendered or sentence pronounced, showing familiarity with these terms and using them in their legal acceptation. Moreover, there is no other act on the statute book providing for appeals in chancery cases, except the act of 11th February, 1832, Thompson’s Digest, 462.

Can it be presumed that a Legislature that so carefully provided for appeals on judgments at common law should have totally failed to provide a similar remedy from decrees in chancery T The act of 11th February, 1832, provides that appeals-may be taken from final decrees in two years ; but it also provides that, if not taken in the time fixed by law in other-cases, they shall not operate as a supersedeas, except on an order of a Judge of the Supreme Court.

Now, will any one contend that an appeal taken from a final decree of the Circuit Court, conformably to the act of 10th February, 1832, will not operate as a supersedeas, and that a party below may still proceed as if no such appeal had been taken, or that such appeal ought to be dismissed as not authorized by law?

We are clearly of opinion that the right to bring appeals-into this Court is declared and provided in the act of 10th February, 1832, as well in chancery cases as in those at law, and, in relation to final decrees in chancery is somewhat extended and modified by the act of the 11th of the same month-; and that the right under the former act is by its terms limited to final judgments, sentences or decrees, while by the latter it is limited to final decrees. We are equally clear that no appeal lies to this Court from an interlocutory decree..

It remains yet to be considered whether the decree in this «ase appealed from is, in its character, interlocutory or final. The acts of Congress providing for appeals from the Circuit to the Supreme Courts of the United States, give the right only on final judgments "or decrees. The question, therefore, as to what are interlocutory and what final decrees, has received considerable'attention from that Court. In the case of Perkins v.

Fourniquet et al., 6 Howard, 206-8, the appellees, children of the deceased wife of appellant, alleged that during her life there existed, in the State of Louisiana, between her and the"appellant, her husband, a community of acquets and gains. The appellant, by his answer, denied any such community.

Upon the hearing, the ■Court decreed that the community did exist and that the appellees, a part of the heirs, had a right to recover their proportion of all their deceased mother’s rights of community which accrued during her coverture with appellant, .and referred the matter to a master in chancery to take and report an account of the acquets and gains, prescribing fully the manner in which the lands acquired were to be divided and the accounts taken. All other matters in controversy be tween the parties were reserved until the coming in of the report of the master.

The Court thereon said: “ This clearly is 41 not a final decree in any respect. It is the common interloc- “ utory order or decree passed by courts of chancery in cases 4‘ of this kind, and it is absolutely necessary to prepare the ■“ case for a final hearing and final decree, wherever the “ complainant is entitled to partition of property or an ac- “ count.” In the case of Pulliam et al. v.

Christian, 6 Howard, 212, where the bill was filed to annul and vacate a deed of trust for the benefit of creditors and a decree was passed to set aside said deed, the Court said : “ This decree is final only 44 as to the trust deed. All the matters arising under the 44 trust are referred to a commissioner for a statement of the 44 account, to enable the Court to enter a final decree. There “ is no sale or change of the property ordered, which can “ operate injuriously to the partiesand the decree, not being final as to the whole matter in controversy, the appeal was dismissed. In the case of Young et al. v.

Smith et al., 15 Peters, 287, the bill was filed by residuary legatees against the executors of an estate. The matter was referred to a master to take an account. He made his report — it was referred back —he again reported, and exceptions filed were disallowed.

The Circuit Court decreed that the report should be accepted and that the complainants should have execution for the "sum reported in the hands of the executors, and, as to the residue of the debts due to the estate, as soon as they or part of them should be collected, the amount should be paid into Court, for distribution to be made under the direction of the Court. The Supreme Court held, (Mr. Justice Story delivering the opinion,) that this decree is an interlocutory and not a final decree, in the sense of the act of Congress. It does not dispose of the whole matter in controversy between the parties.

In the case of Brown v.

Swann, 9 Peters, 1, the complainant filed her bill for injunction against a judgment at law of defendant, alleging usury and part payment, and the injunction was granted, which was afterwards in part dissolved ; and afterwards, upon a hearing of the bill, answer, demurrer of the defendant, exhibits and depositions, the Court decreed that the demurrer be overruled — that the complainant has sustained her allegation of usury — that payments of a part of the judgment at law had been made —that there remains a specified sum yet due — and that a claim for a further credit of fifty dollars on that sum, of which the Court is not sufficiently advised, is demanded by complainant, Thereupon, the Court adjudged and decreed that the injunction awarded the complainant be made perpetual for all except the specified sum — that the defendant be at liberty to proceed under her judgment at law for the specified sum, except the fifty dollars claimed as a credit by the complainant; and this cause was continued for further consideration as to the said sum of fifty dollars.

In this state of the case an appeal was had, and Mr. Chief Justice Marshall delivered the opinion of the Court, dismissing the appeal with costs, because the appeal was granted before there was a final decree in the case. In the case of Barnard et al., v. Gibson, 7 Peters, 650 to 658, Mr. Justice McLean delivered the opinion of the Supreme Court.

The decree appealed from awarded against the defendants a perpetual injunction, restraining them from constructing or using in any manner, or from selling or disposing of certain planing machines which the complainant alleged he had the exclusive right to, under letters patent; and it was referred to a master to report what damages the complainant had sustained by the infringement of his patent by the defendants — the report to be made in term-time to the Court, or in vacation to one of the Judges ; and the question of costs, and all other questions in the cause, were reserved until the coming in of the master’s report.

The Court say the decree in this case is not final within the decisions of this Court. The injunction prayed for was made perpetual, but there was a reference to a master to ascertain the damages by reason of the infringement; the bill was not dismissed, nor was there a decree for costs. The case of Forgay et al. v. Conrad, 6 Howard, 201, seems to recognize other principles than those laid down in the foregoing cases.

In that case all the questions between the parties are finally adjudicated and disposed of — execution awarded against one of the defendants, and certain lands and negroes decreed to be delivered by them to complainant, as assignee in bankruptcy — the bill being .retained to have an account of the rent of the lands and hire of the slaves, stated by a master.

The decree concludes as follows : “ So much of said bill as contains or relates to matters ■“'hereby referred to the master for report, is hereby retained ■“ for further decree in the premises; and so much of 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.” This decree, (Mr. Chief Justice Taney delivering the opinion of the Court,) is held to be final, so as to authorize an appeal.

He says, according to the last paragraph in the decree, the bill is merely retained for the purpose of adjusting the accounts referred to the master ; in all other respects the whole of the matters brought into controversy are finally disposed of, as to all of the defendants, and the bill as to them is no longer pending. “ If these appellants, therefore, must wait until “ the accounts are reported by the master and confirmed by the Court, they will be subjected to an irreparable injury ; for the lands and slaves which they claim will be taken out of their possession and sold, and the proceeds distributed among the creditors of the bankrupt, before they can have an opportunity of being heard in this Court in defence of their rights.” The Chief Justice says, “ 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 com- “ plainant is entitled to have such decree carried immedi‘ ately into execution, the decree must be regarded as a final “ one to that extent, and authorizes an appeal to this Court, ‘ although the bill is retained for the purpose of adjusting, “ by a further decree, the accounts between the parties.”— This rule, of course,” he says, “ does not extend to cases “ where money is directed to be paid into Court, or property to be delivered to a receiver, or property held in trust to “ be delivered to a new trustee appointed by the Court, or “ to cases of a like description.

Orders of that kind are “ frequently and necessarily made in the progress of a cause, but they are interlocutory only, and intended to preserve “ the subject matter iu dispute from dilapidation or Waste, “ and to keep it within the control of the Court, until the “ rights of the parties can be adjudicated by a final decree.” The law of Florida providing for appeals, is similar in its terms to that of the United States, and allows appeals from such final decisions as they are allowable from in the Supreme Court of the United States.

We now have seen the construction given to the act of Congress by the Supreme Court; and considering the great learning, ability and virtue which have ever characterized the members of that bench, we do not feel at liberty to give a different construction from that they have given upon the same identical legal terms — more especially when that construction corresponds with our own best judgment of the proper import of the terms used in the law.

And we think, moreover, if it had been the object of the Legislature to guard against a multiplicity of appeals in the same case, no form of words could have been well devised better calculated to promote that end. We do not, therefore, concur with the Court in Alabama, in distinguishing between the final judgment and the last judgment, so as to make that a final judgment or decree, which must needs., be followed by another judgment or decree, which last may itself be the subject of appeal. We will now look into the decree appealed from in this ease.

That decree adjudges the deed of conveyance of the complainant to the defendant, bearing date 13th day of December, 1845, exhibited with the bill, to be wholly inoperative and void; that the defendant, Edward C. Bellamy,, should and ought to account for the trust property and funds, conveyed by and possessed under the trust deed, bearing date the 19th day of November, 1844 ; that the defendant, E. C.

Bellamy, holds that portion of the trust property,- and profits and issues thereof, purchased by him at sales under execution, by the sheriff of Jackson County, on the-first Mondays of January and February, 1846, subject totbe uses and trusts limited and appointed in the deed of the 19th day of November, 1844. It is further decreed that the defendant, E. C. Bellamy, account before George F.

Baltzell, a Master in Chancery, of and concerning the said trust, rendering a full, true and perfect account in detail of all and singular the trust property and funds committed to his charge, and the rents, issues, profits, crops and proceeds, issuing out of the same, or accruing therefrom; that he be removed from his said trust, and ousted of his said trust estate, and that he deliver, over to the Receiver hereinafter appointed, all of the said trust property and funds, and the rents, issues and profits, and crops, arising from, or issuing out of, the said trust property, and that he stand and remain restrained and enjoined from any interference with, control over, or management of, the said trust property, until the further order of the Court in the premises.

It is further ordered that Frederick C. Pittman be appointed Receiver of the Court in this cause, upon his entering into bond in the penalty of ten thousand dollars, with good and sufficient security to be approved by the master, conditioned for the due and faithful performance of his duties.

It is then ordered that the Receiver shall take possession of said trust property, and rent out the plantation, and hire out the slaves at public auction by the year, until the further order of the Court, and shall render and file in the clerk’s office of the Court, annual accounts of his actings and doings in the premises, and of the amount of funds and securities in hand.

It was further decreed that the master proceed to ascertain and report to the Court, the names of the creditors entitled to the benefits of the said trust estate, with the amount due to each respectively, and their respective order of priorities, and to advertise, in a reasonable and proper manner, for the presentation of such claims; and all further directions are reserved until the coming in of said reports.

It is very plain that this decree is not more, or so nearly a final decree, as any of those we have before mentioned as having been decided by the Supreme Court to be not final, nor is there any precise similitude between it and the case of Forgay, et al. v. Conrad, which will authorize us to entertain this appeal on the authority of that case. There the property was decreed to be delivered to the complainant— here to a Receiver of the Court.

There the property, if received by the complainant, who was assignee of a bankrupt, would have gone into distribution among the creditors of that bankrupt — here it is retained in the custody, and under the control of the Court. There if the appellants waited to appeal, until the accounts were reported by the master, and confirmed by the Court, they were subject to an irreparable injury — here no such injury can ensue.

It was, moreover, laid down in that case, that where money is directed to be' paid into court, or property to be delivered to a Receiver, or property held in trust to be delivered to a new trustee appointed by the court, or in cases of a like description, such orders or decrees are interlocutory only, and are frequently and necessarily made in the progress of a cause. We think, also, the Supreme Court went as far in assuming jurisdiction of the appeal, in the case of Forgay v.

Conrad, as they would willingly go, and were rather surprised into an assumption of jurisdiction, by the perception of irreparable injury to the appellants, if they refused to entertain the appeal, than by any strong opinion that the decree was final; because they say, “ undoubtedly it is not final in the strict technical sense of that term,” and because they admonish chancellors in the Circuit Courts not to shape their interlocutory decrees so as to give them a final effect. The opinion delivered in the case of Forgay v.

Conrad is an able and lucid one, and deserves well the serious consideration of every chancellor, when engaged in making an interlocutory decree. There are many things required by the decree given in this cause to be done, which, when done, may be the subject of exception,, and, consequently, of appeal. If an appeal should be taken at every step, where a party may feel dissatisfied or aggrieved, there is no foreseeing when a cause would end, and the-delays of chancery would become as justly a blot and reproach on the jurisprudence of this country, as they now are,, and long have been, to that of England.

We consider the decree* appealed from in this case as an interlocutory, and not a final judgment, sentence, or decree. The appeal must, therefore, be dismissed, and Samuel C. Bellamy, the appellee, must recover his costs.