within the time specified, the court reserves the consideration of the costs of this suit, and of all further directions until after such trial shall be had; but in case the complainant shall not proceed at law and go to trial within the time aforesaid, his bill is from thenceforth to stand dismissed out of this court, with costs to be taxed. And in either case any of the parties are to be at liberty to apply to the court, as they shall be advised. (717) CHAPTER XXXVI. DECREES. 699. Definition and nature. A decree is the sentence or order of the court, corresponding to the judgment of a court of law, pronounced after the hearing or submission of the cause, by which the rights of the parties to the suit are determined and settled according to equity and good conscience.1 The term "decree" is not applicable to the interlocutory orders made for the furtherance of suits, but belongs to such adjudications as settle some right or liability pertaining to the substance of the controversy.2 The main division of decrees is into interlocutory and final decrees. Decrees are also divided into consent decrees, decrees by default, decrees pro confesso, and decrees after hearing; such classification being dependent upon the condition of the cause, and the manner of the entry of the decree. $ 700. Interlocutory and final decrees. An interlocutory decree is properly a decree pronounced for the purpose of ascertaining matter of law or fact, preparatory to a final decree. A preliminary or interlocutory decree provides for the investigation of questions which are material, either in determining any subsequent steps, or in deciding the 11 Barbour, Ch. Pr. 326. 2 Haines v. Haines, 35 Mich. 138. 81 Barbour, Ch. Pr. 326, 327; Adams, Eq. 375; Richmond v. Atwood, 52 Fed. 10, citing numerous authorities. See, also, Hays v. May's Heirs, 1 J. J. Marsh. (Ky.) 497; Ex parte Crittenden, 10 Ark. 333; Berryman v. Haden, 112 Ga. 752, 38 S. E. 53; Johnson v. Everett, 9 Paige (N. Y.) 638. See, for classification of decrees by Mr. Foster, Foster's Fed. Pr. § 317 et seq. issue between the parties. A final decree, sometimes called a "decree on further directions," or "on the equity reserved," disposes ultimately of the suit. What constitutes a final decree has given rise to much discussion, and is in many instances involved in considerable confusion.5 When a decree finally decides and disposes of the whole merits of a cause, and reserves Adams, Eq. 375; Bruin v. Knott, 12 Sim. 453. It seldom happens that the first decree can be final or conclude the cause. The most usual ground for not making a perfect decree in the first instance is the necessity which frequently exists to ascertain a disputed fact by an issue at law, or to refer the cause to a master of the court to make inquiries, or to take accounts, or to adjust other matters which must be disposed of before a final decision can be made of the subject-matter of the suit. Barton, Suit in Eq. 135; 1 Barbour, Ch. Pr. 327; Adams, Eq. 375. See Richmond v. Atwood, 52 Fed. 21, citing, approvingly, Foster, Fed. Pr. § 318; Adams, Eq. 375; 1 Barbour, Ch. Pr. 326. "Probably no question of equity practice has been the subject of more frequent discussion in this court than the finality of decrees. It has usually arisen upon appeals taken from decrees claimed to be interlocutory, but it has occasionally happened that the power of the court to set aside such a decree at a subsequent term has been the subject of dispute. The cases, it must be conceded, are not altogether harmonious. Upon the one hand, it is clear that a decree is final, though the case be referred to a master to execute the decree by a sale of property or otherwise, as in the case of the foreclosure of a mortgage. If, however, the decree of foreclosure and sale leaves the amount due upon the debt to be determined, and the property to be sold ascertained and defined, it is not final. * ** A like result follows if it merely determines the validity of the mortgage, and, without ordering a sale, directs the case to stand continued for further decree upon the coming in of the master's report. It may be said * * in general that if the court make a decree fixing the rights and liabilities of the parties, and thereupon refer the case to a master for a ministerial purpose only, and no further proceedings in court are contemplated, the decree is final; but if it refer the case to him as a subordinate court, and for a judicial purpose, as to state an account between the parties, upon which a further decree is to be entered, the decree is not final. * But even if an account be ordered taken, if such accounting be not asked for in the bill, and be ordered simply in execution of the decree, and such decree be final as to all matters within the pleadings, it will still be regarded as final." McGourkey v. Toledo & O. C. Ry. Co., 146 U. S. 536. See Morton v. Beach, 56 N. J. Eq. 791, 41 Atl. 214; Cocke's Adm'r v. Gilpin, 1 Rob. (Va.) 20; Humphreys v. Stafford, 71 Miss. 135, 13 So. 865; Rust v. Electric Lighting Co., 124 Ala. 202, 27 So. 263. no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree. A decree which determines the whole controversy between the parties, leaving nothing to be done except to carry it into execution, is a final decree for the purpose of appeal, and none the less so because the court retains the fund in controversy for the purpose of distributing it as decreed. Where the further action of the court in the case is necessary to give completely the relief contemplated by the court, then the decree upon which the question arises is to be regarded, not as final, but as interlocutory.8 • 1 Barbour, Ch. Pr. 330; Mills v. Hoag, 7 Paige (N. Y.) 18; Kane v. Whittick, 8 Wend. (N. Y.) 224. See Ex parte Crittenden, 10 Ark. 333; Humphreys v. Stafford, 71 Miss. 135, 13 So. 865; Petersburg Sav. & Ins. Co. v. Dellatorre, 30 U. S. App. 504, 70 Fed. 643; Travis v. Waters, 1 Johns. Ch. (N. Y.) 85; Tennent's Heirs v. Pattons, 6 Leigh (Va.) 196; Parker v. Logan, 82 Va. 376, 4 S. E. 613; Fleming v. Bolling, 8 Grat. (Va.) 292; Wright v. Strother, 76 Va. 857; Ward v. Funsten, 86 Va. 359, 10 S. E. 415; Bellamy v. Bellamy, 4 Fla. 242; Cook's Heirs & Creditors v. Bay, 4 How. (Miss.) 485; Mead v. Christian, 50 Ala. 561; Battaile v. Maryland Hospital for Insane, 76 Va. 63. 7 Lewisburg Bank v. Sheffey, 140 U. S. 445; Keystone Manganese & Iron Co. v. Martin, 132 U. S. 91. A decretal order on which execution may be taken out is a final decree. Haskell v. Raoul, 1 McCord, Eq. (S. C.) 22. A failure to adjudicate upon the question of costs does not affect the character of the decree as a final one. Peterson v. Vann, 83 N. C. 118. 8 Repass v. Moore, 96 Va. 147, 30 S. E. 458; Cocke's Adm'r v. Gilpin, 1 Rob. (Va.) 28; Rawlings' Ex'r v. Rawlings, 75 Va. 76. A decree is not final, although it declares the principles on which the court means to act in all its future doings in the cause, unless it also adjudicates upon and fixes the rights of the parties, so that it can be carried into effect without further inquiry as to their rights and liabilities. Patterson v. Hopkins, 23 Mich. 541. A decree directing the sale of certain lands, and that the commissioners ascertain and report the several liens on such lands, and their priorities, is an interlocutory decree. Summers v. Darne, 31 Grat. (Va.) 791. See Ambrouse's Heirs v. Keller, 22 Grat. (Va.) 769; Beebe v. Russell, 19 How. (U. S.) 283; Craighead v. Wilson, 18 How. (U. S.) 199. It is said that no case can be found in which a decree directing a reference to a master, or a feigned issue, for the purpose of ascertaining any material fact, has been held to be a final decree. 1 Barbour, Ch. Pr. 330; Jaques v. Trustees of Methodist § 701. Decretal orders. Under the English chancery practice, a distinction was made between decrees and decretal orders. A decree is the order Episcopal Church in New York, 17 Johns. (N. Y.) 548. A decree may be final, though it directs a reference to a master, if all consequential directions, depending upon the result of the master's report, are contained in the decree, so that no further decree of the court will be necessary, upon the confirmation of the report, to give the parties the full and entire benefit of the previous decision of the court. 1 Barbour, Ch. Pr. 330; Cook's Heirs & Creditors v. Bay, 4 How. (Miss.) 485; Bates v. Delavan, 5 Paige (N. Y.) 299; Mills v. Hoag, 7 Paige (N. Y.) 18, 31 Am. Dec. 271. "A decree never can be said to be final where it is impossible for the party in whose favor the decision is made ever to obtain any benefit therefrom without again setting the cause down for hearing before the court, upon the equity reserved, upon the coming in and confirmation of the report of the master to whom it is referred to ascertain certain facts which are absolutely necessary to be ascertained before the case is finally disposed of by the court, or which the chancellor thinks proper to have ascertained before he grants any relief whatever to the complainant. But if the decree not only settles the rights of the parties, but gives all the consequential directions which will be necessary to a final disposition of the cause, upon the mere confirmation of the report of the master by a common order in the register's office, it is a final decree, and may be enrolled at the expiration of thirty days, although the amount to which the complainant may be entitled under such decree is still to be ascertained upon a reference to a master for that purpose. Thus, in the ordinary case of a bill for the foreclosure of a mortgage, if the decree merely decides or declares the rights of the complainant by virtue of his bond and mortgage, and refers it to a master to compute and ascertain the amount due to him, reserving all further questions and directions until the coming in and confirmation of the master's report, it is an interlocutory decree merely, as the complainant cannot obtain the benefit of his suit until he brings the cause on to be heard again upon the equity reserved, and for further directions as to a sale of the mortgaged premises and the payment of his debt and costs out of the proceeds of such sale. But if the decree, in addition to the reference to the master to compute the amount due upon the bond and mortgage, proceeds further, and gives the usual directions in such cases,-that, upon the coming in and confirmation of the report of the master, the premises shall be sold, and that the master who makes such sale shall pay the amount so reported due, together with the interest and costs, out of the proceeds of such sale, and directing the mortgagor to pay the deficiency reported due upon such sale,-the decree is finai, ai though the mortgagor may have the right to except to the master's (721) |