Wurzer v. Geraldine

• Decision Date: 18 September 1934
• Docket Number: No. 9.,9.
• Citation: 268 Mich. 286,256 N.W. 439
• Parties: WURZER v. GERALDINE et al.
• Court: Michigan Supreme Court

268 Mich. 286

256 N.W. 439

WURZER

v.GERALDINE et al.

No. 9.

Supreme Court of Michigan.

Sept. 18, 1934.

Appeal from Circuit Court, Otsego County, in Chancery; Guy Smith, Judge.

Suit by Louis C. Wurzer, administrator with the will annexed of the estate of Herman L. Benz, deceased, against Dion Geraldine and others. From an order continuing the case, plaintiff appeals.

Reversed and set aside, and decree entered for plaintiff.

Argued before the Entire Bench.Wurzer & Higgins, of Detroit (John T. Higgins, of Detroit, of counsel), for appellant.

John McNeil Burns and Cyril E. Bailey, both of Detroit, for appellees.

POTTER, Justice.

Upon a bill to foreclose a real estate mortgage, a decree was entered. Defendants defaulted in making payments decreed to be made January 20, 1933. Plaintiff filed a motion under paragraph 11 of the decree, to enter an order or supplemental decree determining the amount due under such decree, and directing foreclosure sale, provided for therein, be proceeded with, for the reasons the payment provided for in the decree to be made on January 20, 1933, was in default, and the amount due under the decree was the sum of $23,739.03, plus taxes, interest, and penalties as shown by the records of the treasurer's office of Otsego county.

This motion was supported by affidavit and noticed for hearing on June 6, 1933, before the circuit judge. No answer was filed thereto, but defendants filed a petition for a continuance until March 1, 1935, upon conditions to be determined by the court pursuant to Act No. 98, Public Acts 1933, and the trial court, holding no final decree had been entered, ordered an adjournment of all proceedings therein until March 1, 1935.

Plaintiff appeals, claiming the decree first entered was a final decree, and, such decree being a final decree, entered before the effective date of Act No. 98, Public Acts 1933, the trial court was without power to stay foreclosure sale thereunder, but could only extend the period of redemption after sale. The important question is whether such decree was a final decree.

1. Mortgage foreclosure proceedings are special and statutory, and not an exercise of inherent equity powers of the court. Johnson v. Shepard, 35 Mich. 115;Kelly v. Gaukler, 164 Mich. 519, 129 N. W. 703;Kollen v. Sooy, 172 Mich. 214, 137 N. W. 808; Union Trust Co. v. Detroit Trust Co., 243 Mich. 451, 220 N. W. 728;Janower v. F. M. Sibley Lumber Company, 245 Mich. 571, 222 N. W. 736.

2. Blackstone says: ‘Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for.’ 3 Blackstone, Comm. p. 398.

In Shubrook v. Tufnell, 9 Q. B. Div. 621 C. A., the order in question did not decide the matter in litigation, but referred it back to an arbitrator. Upon the application on which it was made, a final adjudication might have been made. The order was held to be final. This holding was approved by Lord Halsbury, L. C., in Bozson v. Altrincham Urban Council, 1 K. B. 547 (C. A.).

‘To constitute an order a final judgment, nothing more is necessary than a proper litis contestatio, and a final adjudication between the parties to it on the merits.’ Re Faithfull, ex parte Moore, 14 Q. B. Div. 627.

In re Riddell, ex parte Strathmore, 20 Q. B. Div. 512, Lord Esher suggested this definition of a final judgment; namely: ‘A judgment obtained in an action by which the question whether there was a pre-existing right of the plaintiff against the defendant is finally determined in favor either of the plaintiff or of the defendant.’

And in 18 Halsbury's Laws of England, p. 178, it is said: ‘A judgment or order which determines the principal matter in question is termed ‘final.’ An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure; or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed ‘interlocutory.”

3. Chancery practice in Michigan is based upon that of England and largely copied from that of New York.

In Mills v. Hoag, 7 Paige (N. Y.) 18, 31 Am. Dec. 271, it is said: ‘Chief Justice Savage defines a final decree to be the last decree which is necessary to be entered to give to the parties the full and entire benefit of the judgment of the court. The decree in this case comes within that definition, as no further questions or directions are reserved for the future judgment of the court. And although some further proceedings are to be had before a master to carry into effect the decree, all the consequential directions depending upon the result of those proceedings are given in the present decree. It is true there may be exceptions to the master's report; and in that case a further order of the court will be necessary to dispose of those exceptions. But a decree is not the less final in its nature because some future orders of the court may possibly become necessary to carry such final decree into effect. The usual decree in mortgage cases, for the sale of the property and the distribution of the fund among the parties and finally disposing of the question of costs, is a final decree as between the complainant and the defendants, and is constantly enrolled as such; although the master's report of the sale and distribution may be excepted to if it is erroneous, and it may require a subsequent order of the court to dispose of the questions which may thus arise.’

In Johnson et al. v. Everett et al., 9 Paige (N. Y.) 636, it is said:

‘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 final; although the mortgagor may have the right to except to the master's report of the amount due. For the questions arising upon the exceptions to the master's report, in such a case, are merely incidental to the carrying of the final decree in the cause into full effect.’

‘The true rule seems to be, that if that which remains to be done or decided will require the action or consideration of the court before the rights involved in the cause can be fully and finally disposed of, the decree is interlocutory; but it is none the less final if, after settling the equities, it leaves a necessity for some further action or direction of the court in execution of the decree as it stands.’ 1 Black on Judgments, par. 41.

‘A decree is final which directs the sale of property and fixes the rights and interests of the respective parties therein, though the officer who is to make the sale is required, after paying a specified claim, to pay the surplus in his hands to the complainant ‘after deducting such costs as the court shall decree to be paid out of the same.’ A judgment dissolving a partnership, directing a sale of the firm property and providing for the distribution of the proceeds between the parties, is a final judgment, though the compensation of the receiver and the amount to be paid to the creditors are reserved for future determination. A decree in other respects final is not rendered interlocutory by a direction therein contained, in aid of the execution of the decree, requiring the defendants to account concerning certain specified matters, and a reservation to the court of the right to make ‘such further directions as may be necessary to carry this decree into effect concerning costs, or as may be equitable and just.’ If, in an action to recover moneys on a contract for the sale of land and to subject the land to sale for such amount as should be found due, a cross-petition is filed, alleging the existence of a cloud on plaintiff's title, and the court, after trial, adjudges that the cloud has been...