Ex parte Jordan/Opinion of the Court

by Morrison Waite

United States Supreme Court

94 U.S. 248

Ex parte Jordan

We think that an appeal should have been allowed in this case. The petitioners were defendants in the suit when the final decree was rendered. They were directly interested in what was then decided. The allowance of an appeal under sect. 692, Rev. Stat., follows of course, if prayed for by one who has the right to it. The language of the statute is, 'shall be allowed,' which means 'must be allowed,' when asked for by one who stands in such relation to the cause that he can demand it. The question upon such an application is not what will be gained by an appeal, but whether the party asking it can appeal at all.

It is true that the petitioners were not parties to the suit until after the bill was taken as confessed; but it is clear that a decree pro confesso did not end the case, because before the final decree was rendered it was found necessary to have a reference to a master, 'to compute, ascertain, and report.' Before the master could comply with this order proof had to be taken; and the original time given him to report was extended for that purpose. When this reference was made, the petitioners were defendants and actors in respect to the litigation. They certainly had the right to contend before the master, and to except to his report. This they did; and their exceptions were overruled. Even the report of the master did not put the case in a condition for a final decree. The amount due upon the bonds and coupons had still to be ascertained. That was done by the court, and stated in the decree. Against these findings, certainly, the petitioners were in a condition to contend, and, if to contend below, to appeal here. It will be time enough to consider what relief they can have under their appeal when the case comes up.

While complaint is made of interlocutory orders entered in the progress of the cause, the appeal lies and was asked only from the final decree. Whatever comes here comes through such an appeal. When the case gets here, the petitioners may not be allowed to go behind orders actually made by the court as to the administration of the property before they were admitted to defend, but the case was certainly open to them, when they came in, as to all other matters involved.

The exceptions of the petitioners were not filed until after the expiration of one month from the time of filing the master's report. Under equity rule 83 the complainants could have insisted upon a confirmation of the report by reason of this default at the next rule-day after it occurred. But they did not see fit to do so. The exceptions were received out of time without objection, and acted upon by the court. This was a waiver of the default.

A writ of mandamus will be issued directing the Circuit Court to allow the appeal asked for, as of Oct. 2, 1876, and it is so Ordered.

Notes