Supreme Court of United States.
*333 Mr. Theodore G. Barker for appellant.
Mr. Henry A.M. Smith for appellee.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
A decree to be final for the purposes of appeal must leave the case in such a condition that if there be an affirmance in this court, the court below will have nothing to do but execute the decree it has already entered. Dainese v. Kendall, 119 U.S. 53. In this case the record contains no decree disposing of the case as to all the parties. The orders were as follows: December 3, 1890: "This cause having come on to be heard at the November term, 1890, upon the demurrer of Daniel C. Stelling to the bill of complaint herein, and counsel on both sides having been heard: It is thereupon adjudged and decreed that the said demurrer be sustained." On the same day the following appears: "The complainant in the above-entitled cause having in open court, at the present term of this court, prayed that an appeal be allowed to it from the judgment of this court sustaining the demurrer of Daniel C. Stelling, defendant, and dismissing the bill: It is ordered that said appeal be allowed." On March 14, 1891, the appeal was perfected as to Stelling by giving a bond in the sum of $250 running to Stelling, and reciting that lately at a regular term of the Circuit Court "a decree was rendered against the said complainant on the demurrer of said Daniel C. Stelling, dismissing said bill against the said defendant, Daniel C. Stelling, and the said complainant having obtained leave to appeal to the Supreme Court of the United States from said decree," etc. The *334 errors assigned are to the action of the Circuit Court "in sustaining the demurrer of defendant Daniel C. Stelling, and in dismissing the bill as to said Daniel C. Stelling, defendant." And appellant's counsel designated among the parts of the record necessary for the consideration of the errors upon which he intended to rely: "The decree of the Circuit Court sustaining the demurrer and dismissing the bill of complaint as to Daniel C. Stelling."
So far as appears the case stands at issue below as to the defendants other than Stelling, and the whole cause has not been finally determined in the Circuit Court. It cannot be divided so as to bring up successively distinct parts of it, and the decree is not a final decree.
It may be that if the order of the Circuit Court were affirmed appellant would abandon further effort against the other defendants, while it is clear enough that if the order were reversed the case would be proceeded in against them all; but it is useless to speculate on the subject, as this appeal manifestly falls within the general rule.
In Mendenhall v. Hall, 134 U.S. 559, the suit was brought by Mendenhall against Clark N. Hall and Charles F. Hall. Charles F. Hall demurred and filed a special plea to the bill. Clark N. Hall also demurred. The demurrer and plea of Charles F. Hall were both sustained, and by a decree entered May 13, 1885, the bill was dismissed as to him. The demurrer of Clark N. Hall was overruled, and he answered, and the cause went to decree against him April 14, 1886. An appeal was taken to this court by the plaintiff, who executed an appeal bond which ran "to the defendants." Charles F. Hall was not served with notice of the appeal, and when the case was reached on our docket and that fact appeared, a citation was directed to be served upon him, or, if he was dead, upon his representative. The citation was executed upon his widow, who was also administratrix of his estate. On the argument here, it was suggested that no appeal had been taken as to Charles F. Hall, and that this court was without jurisdiction over the case as to him, but we held that the appeal brought before us not only the final decree of 1886, but also that of 1885, sustaining the *335 demurrer and plea of Charles F. Hall and dismissing the suit as to him, and that it was not necessary to take an appeal from the latter order until after the whole case was determined in the court below.
In Hill v. Chicago & Evanston Railroad, 140 U.S. 52, a decree had been rendered June 8, 1885, dismissing a bill as to certain parties for want of equity, and denying relief to complainant upon all matters and things in controversy except as to an amount of money paid by one of the defendants, and for the purpose of ascertaining that amount the case was retained as to some of the defendants, which finally resulted in a decree, July 14, 1887, as to that severable matter. It was held that, under these circumstances, the decree of June 8, 1885, was a final decree as to all matters determined by it, and that its finality was not affected by the fact that there was left to be determined a further severable matter, in respect of which the case was retained only as against the parties interested in that matter. An appeal had been prayed from the decree of June 8, 1885, but the transcript of the record not having been filed here at the next term after the appeal was taken, it was, on motion, dismissed. Hill v. Chicago & Evanston Railroad, 129 U.S. 170.
This decree cannot, however, be brought within the exception created by the peculiar circumstances of that case.
As the order upon the demurrer did not dispose of the whole case, the decree is not final, and we cannot entertain jurisdiction.
Appeal dismissed.
