OpenJurist

135 US 232 Lodge v. Twell

135 U.S. 232

10 S.Ct. 745

34 L.Ed. 153

LODGE et al.
v.
TWELL.

April 28, 1890.

[Statement of Case from pages 232-234 intentionally omitted]

S. S. Burdett, for appellants.

James I. Brownson, Jr., for appellee.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.

1

It will be perceived that the decree did not identify the particular property to be delivered, nor specify the amount of money to be paid or collected. The court had found that Lodge and Beaumont had sol part of the original property, and realized therefrom about $2,500, but the exact amount was not determined by the decree, nor the amount of the rents, issues, and profits received by them, nor that Lodge and Beaumont, while directed to account for the property, should respond, as of the date of the invalidated sale, for the value of so much as they had disposed of, or for the proceeds only. The receiver was directed to sell the property delivered to him, but what that property would be necessarily could not appear until what had been sold by Lodge and Beaumont had been ascertained. Until these matters were adjusted, and the account taken, it was impossible to tell for what amount an order of payment or a money decree should go against the defendants Lodge and Beaumont, after the delivery of the property they had on hand to the receiver. What was left to be done was something more than the mere ministerial execution of the decree as rendered. The decree was interlocutory, and not final, even though it settled the equities of the bill. Craighead v. Wilson, 18 How. 199; Young v. Smith, 15 Pet. 287; Iron Co. v. Martin, 132 U. S. 91, ante, 32. In Railroad Co. v. Swasey, 23 Wall. 405, 409, Mr. Chief Justice WAITE, in passing upon a decree of foreclosure and sale, observed that an appeal may be taken from such a decree 'when the rights of the parties have all been settled and nothing remains to be done by the court but to make the sale and pay out the proceeds. This has long been settled. The sale in such a case is the execution of the decree. By means of it the rights of the parties, as settled, are enforced. But to justify such a sale, without consent, the amount due upon the debt must be determined, and the property to be sold ascertained and defined. Until this is done the rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged. So, too, process for the sale of specific property cannot issue until the property to be sold has been judicially identified. Such adjudications require the action of the court.' 'The authorities are uniform,' said Mr. Chief Justice WAITE, in Dainese v. Kendall, 119 U. S. 53, 54, 7 Sup. Ct. Rep. 65, 'to the effect that a decree, to be final for the purposes of an appeal, must leave the case in such a condition that if there be an affirmance here the court below will have nothing to do but to execute the decree it has already entered.' Upon applying for the allowance of an appeal to this court, Lodge and Beaumont made affidavit that, by the judgment and decree of the district court, it had been found that the personal property sold to them by Twell was of the value of $4,200, and that the real estate was of the value of $600, and they stated in effect that they had received, up to the rendition of the judgment of the supreme court, rents and profits sufficient, if added to those sums, to make an aggregate in excess of $5,000. But, as we have seen, the decree referred to the value of the property as of the date of the alleged sale and assignment, and did not in terms require Lodge and Beaumont to account at that value, so that until the entry of another decree it would remain problematical whether the money which might thereby be decreed to be paid and the value of the property recovered in specie, together, would be equal to the amount necessary to give us jurisdiction. Taking this decree as a whole, we are satisfied that the appeal from the judgment affirming it will not lie, and it is accordingly dismissed.