Phillips v. Pearson

Bowie, C. J., delivered the opinion of this Court. The preliminary question in this case on the motion to dismiss, is whether there is any final decree, or decretal order, from which an appeal could be taken. The only entry on the record, manifesting the action of the Court below, is an opinion of the Judge, concluding as follows, “viewing the whole case as it is presented to me, I think this bill cannot be sustained, and must be dismissed with costs as to the defendant Pearson. ” Upon the filing of which the complainant, without waiting the further order of the Court, on the same day, entered an appeal. There were several other defendants in this case, as to some of whom a decree pro confesso, and to others an interlocutory decree, had previously been passed.

The opinion of the Court made no disposition of the cause as to these parties. If the paper filed by the Judge in this case can he considered as a final decree or order in the nature of a final decree as to Pearson, it was clearly not so as to the other defendants ; but in our judgment, it can be regarded only as the opinion of the Judge, to be followed by an order or decree, finally determining the rights of all the parties. In the case of Hagthorp, &c., vs. Hook’s Adm’rs, d. b. n., 1 G. & J., 309, the Chancellor, in his introductory remarks, discussed the principles which he considered applicable to the case¿ and in favor of the appellee, and announced his intention to decree accordingly. To enable him to do which ²⁵⁴ he passed an order directing an account to be stated in accordance with his views.

On appeal from that order, Judge Dorsey, delivering the opinion of this Court, said, it was true the Chancellor had distinctly announced what he intended to do, but his intentions formed no ground for an appeal he might abandon or change them ad libitum. “It is only from what he has done, not from what he intends to do, that an appeal will lie.” Reasoning aside, he said, the question was put to rest by the case of Snowden et al. vs. Dorsey et al., 6 Har. & John., 114. There upon a bill filed for a conveyance of land, the Chancellor declared, in his opinion, the complainants’ claim to relief had been established, and ordered an account of the rents and profits preliminary to a final decree. Upon appeal from that order, after argument and a thorough examination of the practice and decisions upon the subject, this Court dismissed the appeal. So in the case of Roberts et al. vs. Salisbury et al., 3 G. & J., 425 , the Chancellor expressed his opinion upon the merits of the case, and referred the cause to the auditor for an account.

An appeal from that order was considered premature. It may be said that in all these cases the opinion of the Court was the precursor of the order appealed from and indicated a further act to be done, whilst in this case there is no such intimation. Yet the opinion in the present case does not amount to a final act; it concludes with the expression of an opinion, not the announcement of a judgment or decree. An appeal was allowed in the case of Thompson vs. McKim et al., 6 H. & J., 302 , upon the ground, that the facts on which the order was based were required to be either admitted or established, so as to be open to no controversy at any subsequent stage of the proceedings, and material and irreparable injury was done by the order, let the subsequent decree of the Chancellor be what it ²⁵⁵ mightj or although, no future decree bo ever made.

It was attempted to distinguish Hagthorp, &c., vs. Hook’s Adm’rs from Snowden et al. vs. Dorsey et al., by quoting an expression, used by the Court in Thompson vs. McKim, stating that the order passed in Snowden vs. Dorsey bore no impress of the Chancellor’s judicial opinion upon the merits of the case, whereas the order in the case at bar (Hagthorp’s case) did bear such impress. This Court declared the argument rested “ upon a misconception of this expression of the Court.” They did not mean to say that the introductory remarks to the order in Snowden et al. vs. Dorsey bore no impress of the Chancellor’s opinion upon the merits of the case, because the reverse is most palpably the fact; it does bear the impress of his opinion, but not of his “judicial opinion.” The impress of the Chancellor’s “judicial opinion,” in the sense in which the Court have used it, being synonymous with what he has adjudged or decreed. This emphatic distinction between mere opinion and “judicial opinion,” leaves no doubt of the difference in their legal effect; the former being interlocutory, the other final in its character. In deference to these decisions, we are obliged to consider the opinion of the learned Judge filed in this cause as an incomplete act announcing his intentions, which he