Thompson v. White

Ross, J. This action was brought for the enforcement of an alleged contract for the conveyance of certain interests in certain letters patent, for an accounting in respect to certain matters connected therewith, and to obtain such decree as the equities of the case demand. The cause came on for hearing before the late Nineteenth District Court, and after taking testimony, oral and [507]documentary, that court made certain findings of fact, and thereupon entered an interlocutory decree, to the effect that the defendant convey to the plaintiff the interests in question, upon the performance of certain conditions on the part of the plaintiff, and further directed the commissioner of the court to take testimony and report to the court upon certain other matters of fact. Testimony upon "those questions was taken before the commissioner, who subsequently made his report to the Superior Court succeeding the Nineteenth District Court, and by the Superior Court certain exceptions which were taken to the report of the commissioner were overruled and the report confirmed. The judge who at this time presided in the Superior Court was succeeded by another, and before the latter a motion was made for the entry of a final decree in the cause. The learned judge to whom this motion was addressed, denied it, and instead, entered an order purporting to vacate and set aside the interlocutory decree entered by the Nineteenth District Court, the report of the commissioner and its confirmation, and, indeed, all proceedings taken in the cause subsequent to the filing of the defendant’s answer, and restoring the action to the calendar for trial. The view taken by the judge below in thus ordering was, that under our system there cannot be, even in an equity case, any such thing as an interlocutory decree, and that therefore the interlocutory decree entered by the Nineteenth District Court was a nullity and all proceedings based thereon void.

In this there was error. It is not necessary to consider whether under the former Constitution, which gives to the District Courts existing under it jurisdiction, and under the present Constitution, which gives to the Superior Courts existing under it jurisdiction, “of cases in equity,” it lay in the power of the legislature to deprive such courts of so essential a means for the proper disposition of cases in equity as the interlocutory decree; for it is a mistake to say the legislature has attempted to do anything of the kind. On the contrary, by section 187 of the Code of Civil Procedure, it is expressly declared that “when jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given, and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed