Sheppy v. Stevens

• Decision Date: 25 November 1912
• Docket Number: 20.
• Parties: SHEPPY v. STEVENS.
• Court: U.S. Court of Appeals — Second Circuit

200 F. 946

SHEPPY v. STEVENS.

No. 20.

United States Court of Appeals, Second Circuit.

November 25, 1912

H. & W A. Hendrickson and S. A. Hungerford, all of Albany, N.Y (George M. Palmer, of Cobleskill, of counsel), for plaintiff in error.

R. J Le Boeuf, of Albany, N.Y., for defendant in error.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

NOYES Circuit Judge (after stating the facts as above).

It is fundamental that no writ of error lies unless the whole matter in the record be determined. A case cannot be brought up piecemeal. This was regarded as settled law as long ago as Metcalf's Case, 6 Coke 68, decided in the reign of King James I, where an earlier decision was thus approved:

'In trespass by the lord of S. against one for taking his cattle; as to parcel, the defendant pleaded not guilty; and as to the other, he pleaded another plea, upon which the plaintiff demurred, and afterwards the issue was found for the plaintiff, upon which he had judgment; yet he shall not have a writ of error, till the whole matter is determined. And the reason of the said case is, that if the record should be removed before the whole matter is determined, there would be a failure of right; for the judges of the King's Bench cannot proceed upon the matter which is not determined, and upon which no judgment is given; and the whole record ought to be either in the Common Pleas or in the King's Bench; also the original is entire, and cannot be there and here likewise.'

Metcalf's Case was approved by the Supreme Court of the United States in United States v. Girault, 11 How. 22, 31 (13 L.Ed. 587), where the court said:

'The writ is conditional, and does not authorize the court below to send up the case unless all the matters between all the parties to the record have been finally disposed of. The case is not to be sent up in fragments, by a succession of writs of error.'

And in Holcombe v. McKusick, 20 How. 553, at page 554, 15 L.Ed. 1020, where a demurrer to a part of a replication was sustained but some material allegations were left, the Supreme Court held that the judgment upon the demurrer was not such a final judgment as could be reviewed upon a writ of error and again said:

'The whole of the cause, therefore, in the court below, was not disposed of, and no final judgment rendered, upon which a writ of error from this court would lie. It is the settled practice of this court, and the same in the King's Bench in England, that the writ will not lie until the whole of the matters in controversy in the suit below are disposed of. The writ itself is conditional, and does not authorize the court below to send up the case, unless all the matters between the parties to the record have been determined. The cause is not to be sent up in fragments.'

The principle of these early decisions has been repeatedly reaffirmed by the Supreme Court and it is clearly established that writs of error cannot be brought either to that court or to this court until final judgment and that a final judgment is one which disposes of all the matters in litigation between the parties as shown upon the record. Southern R. Co. v. Postal Telegraph Co., 179 U.S. 641, 21 Sup.Ct. 249, 45 L.Ed. 355; Luxton v. North River Bridge Co., 147 U.S. 339, 13 Sup.Ct. 356, 37 L.Ed. 194; McLish v. Roff, 141 U.S. 661, 12 Sup.Ct. 118, 35 L.Ed. 893.

The rule governing writs of error also applies in appeals in equity. As a general rule only a final decree can be the subject of appeal in the federal courts and a decree is final only when it settles the whole cause. To this general rule there are some exceptions. Statutes authorize appeals from certain interlocutory orders. So the Supreme Court has at times looked at the substance rather than the letter of the rule. Thus an appeal has been permitted where the decree determined the substantial controversy but left some subsidiary matters unadjusted. Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404. So an appeal has been sustained where there have been several defendants and a separate controversy has been found to exist as to some of them. Hill v. Chicago, etc., R. Co., 140 U.S. 52, 11 Sup.Ct. 690, 35 L.Ed. 331. But as said by the Supreme Court in Ex parte National Enameling Co., 201 U.S. 156, 26 Sup.Ct. 404, 50 L.Ed. 707,...