West v. East Coast Cedar Co.

• Decision Date: 04 February 1902
• Docket Number: 427.
• Citation: 113 F. 742
• Parties: WEST v. EAST COAST CEDAR CO.
• Court: U.S. Court of Appeals — Fourth Circuit

113 F. 742

WEST v. EAST COAST CEDAR CO.

No. 427.

United States Court of Appeals, Fourth Circuit.

February 4, 1902

T. B Womack, for appellant.

E. F Aydlett and F. H. Busbee, for appellee.

Before GOFF and SIMONTON, Circuit Judges, and JACKSON, District Judge.

SIMONTON Circuit Judge.

This case comes up on appeal from the circuit court of the United States for the Eastern district of North Carolina. An action at law to recover possession of an interest in a large tract of land was pending on the law side of the court. The plaintiff at law, William A. West, filed a bill on the equity side of the court, praying an injunction against the East Coast Cedar Company, the defendant, restraining it from cutting timber on the land in dispute pending the action at law. An injunction was issued, and as a condition thereto an injunction bond was required from complainant. The case at law having terminated in favor of the defendant in this suit, the bill was dismissed, the injunction was dissolved, costs and disbursements were awarded the defendant, and the court adds:

'That defendant recover of the complainant and the sureties on the injunction bond such damages as defendant has suffered by reason of the issuing of such injunction. It is further ordered by the court that this cause be referred to Wm. M. Bond, Esq., of Edenton, N.C., who is hereby appointed special master for that purpose, to ascertain and report to this court what damages, if any, defendant has suffered by reason of the injunction aforesaid.'

Leave was granted to appeal from this judgment. The cause is here on several assignments of error, to wit: (1) Error in dismissing the bill; (2) error in dissolving the injunction before a final hearing, and at such final hearing dismissing at the cost of defendant; (3) in that costs were to be taxes against complainant, and not against the defendant; (4) in that it was adjudged that defendant recover of complainant and his sureties on the injunction bond such damages as the defendant may have suffered by reason of the issuing of the injunction and referring the case to a special master to ascertain and report the same, whereas his honor should have decreed that the complainant was not liable for any damages upon the injunction bond in this case.

The second and third assignments of error cannot be entertained in this court. They complain that costs are taxed against complainant. Costs in equity are within the discretion of the court, and hence no appeal lies to this court in the matter of costs. Stuart v. Boulware, 133 U.S. 78, 10 Sup.Ct. 242, 33 L.Ed. 568; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; Mining Co. v. Sweeney, 24 C.C.A. 578, 79 F. 277. No abuse of this discretion is shown. Clarke v. Warehouse Co., 10 C.C.A. 393, 62 F. 328.

With regard to the first and fourth assignments of error, there is doubt at the threshold whether the decree below is final. If it had stopped at the dismissal of the bill, of course it would have been final. But continuing, the court below ordered a reference to inquire and report what damages, if any, defendant had suffered. So the bill is dismissed in words, but it is retained in effect, for the purpose of ascertaining the damages. The test of the finality of a decree is that, if it be affirmed in the appellate court, nothing will be required of the court below but to execute its own decree. Bostwick v. Brinkerhoff, 106 U.S. 3, 1 Sup.Ct. 15, 27 L.Ed. 73. Or as it is put in Mower v. Fletcher, 114 U.S. 127, 5 Sup.Ct. 799, 29 L.Ed. 117:

'A judgment of a superior court remanding a case to an inferior court for entry of judgment, and leaving no judicial discretion to the latter as to further proceedings, is final.'

In the case at bar the order relating to the injunction bond, and damages thereunder, cannot be said to be within the pleadings. It is ordered simply in execution of the decree.

In McGourkey v. Railroad Co., 146 U.S. 545, 546, 13 Sup.Ct. 172, 36 L.Ed. 1076, the law is thus stated:

'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 a decree be final as to all matters within the pleadings, it will still be regarded as final.'

The provision in the order of the court below with reference to the damages is simply in execution of the decree, and imposes no judicial duties on the special master. He is to decide nothing. We are of the opinion that this decree, under this case, is final. This being the case, we see no error in the court below in dismissing the bill. It was...