Thomson v. Dean

Decision Date01 December 1868
Citation19 L.Ed. 94,74 U.S. 342,7 Wall. 342
CourtU.S. Supreme Court

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.

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.

Mr. Phillips, in support of the motion:

It is, perhaps, not quite easy to reconcile all the decisions of this court on the question as to what is a 'final decree' upon which an appeal will lie.

In Forgay v. Conrad,1 Taney, C. J., delivering the opinion, says:

'Where the decree decides the right to the property in contest and directs it to be delivered up, or directs it to be sold, and the complainant is entitled to have it carried into immediate execution, the decree must be regarded as final to that extent, although it may be necessary by a further decree to adjust the account between the parties.'

The principle thus laid down indicates that there may be more than one 'final decree' in a cause. But later decisions seem not to sustain what is said in that case.

In Beebe v. Russell2 the case of Forgay is referred to with the evident intent that it should not be regarded as establishing a principle. 'The fact is,' say the court, 'that the order of reference to the master was peculiar, making it doubtful if it could in any way qualify the antecedent decree.'

So far from sustaining the principle announced in Forgay's case, the court reiterates the decision in the case of The Palmyra,3 where restitution, with costs and damages, had been decreed, but the damages had not been assessed. This was held on appeal not to be a final decree. The ground of the holding was, that an appeal would lie on the decree awarding damages, and that the cause could not be divided so as to bring up distinct parts of it.

Again, it was decided that the term 'final decree' is to be construed as it was understood in England and this country at the date when Congress acted upon the subject, and that at the date named, a decree was regarded as interlocutory whenever an inquiry as to matter of law or fact is directed preparatory to a final decision; while it is true that a decree may be final, although it directs a reference to the master, provided all the consequential directions depending on the master's report are contained in the decree, so that no further decree will be necessary to give the parties the full benefit of the previous decision of the court.

The latest case is Humiston v. Stainthorp.4 The bill here was for infringement of a patent; the decree, a permanent injunction, with reference to the master to take an account of profits. The cases were fully discussed at the bar. But the court dismissed the appeal 'according to a long and well-settled class of cases,' which are referred to in a note.

No counsel appeared against the motion.

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 non-performance within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which he shall not be discharged 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...

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58 cases
  • United States v. 243.22 Acres of Land
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 26, 1942 a further decree the accounts between the parties pursuant to the decree passed."11 The same ruling was made in Thomson v. Dean, 7 Wall. 342, 345, 19 L. Ed. 94. There, in a suit relating to the ownership and transfer of certain shares of stock, the decree decided that the right of both w......
  • Kelly Inn No. 102, Inc. v. Kapnison
    • United States
    • New Mexico Supreme Court
    • January 7, 1992
    ...judgment makes no ruling on the recoverability of attorney's fees, it is nevertheless final.9 See, for example, Thomson v. Dean, 74 U.S. (7 Wall.) 342, 345, 19 L.Ed. 94 (1868) (stating that "this court has always desired that appeals be taken only from decrees which are not only final but c......
  • Rector v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • May 28, 1927
    ...S. 527 26 L. Ed. 1157) has no application here. Nor have cases like Forgay v. Conrad, 6 How. 201, 204 12 L. Ed. 404 and Thomson v. Dean, 7 Wall. 342, 345 19 L. Ed. 94, where decrees finally disposing of property which the successful party was entitled to have carried into execution immediat......
  • Wells v. Shriver
    • United States
    • Oklahoma Supreme Court
    • April 5, 1921
    ...the fact that execution had been awarded was the only ground upon which the finality of the decree could be supported. In Thomson v. Dean, 74 U.S. (7 Wall.) 342 (19:94), the decree directed the defendant to transfer to the plaintiff certain shares of stock, and that an account be taken as t......
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