[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 557 The principal question in this case relates to the interlocutory order of March 15, 1869, made in a previous action instituted by the present plaintiff against James Buckelew, who died before final judgment in that action, and two of whose legatees are the respondents on this appeal. To maintain the action against them it was necessary for the plaintiff to establish the liability of James Buckelew for a breach of his covenant against incumbrances. Without the aid of the interlocutory order obtained in his life-time that liability is unproved, and the admissibility of such order is, therefore, the vital question to be considered.
It was made upon a trial at Special Term, and on the report of a referee who had been directed to take proof of the necessary facts and take the accounts and report the same, with his opinion, to the court. The report was confirmed in part, but *Page 559 set aside in certain specified particulars, and the order, after settling the true principles which should govern the account, concluded with a direction that it be referred back to the said referee to report what amount, if any, upon the principles aforesaid should be awarded to the plaintiff, to the end that further action might be taken by the court. The order concluded with the following direction for its entry, viz.: "Enter the preceding order as of March 15th, 1869, without prejudice to either party."
It is claimed on the part of plaintiff that this order is in substance and effect an interlocutory decree, and although the action abated by the death of Buckelew, and the reference awarded was never executed, and the action not having been revived never terminated in a judgment, yet as against the legatees of Buckelew the order was conclusive as evidence, and established the main facts upon which his liability rested.
Authority for this proposition is cited (Wood v. Byington, 2 Barb. Ch. 388), and the opinion of the Chancellor in that case gives, at least, so much of color to the claim as to demand of us a careful consideration.
A judgment when pleaded is a bar, and as evidence is conclusive, between parties and privies, upon the principle that there should be an end to every litigation, and when an issue has been once actually determined, it should not again be contested by the same adversaries, or those claiming under them. (Greenl. Ev., § 522; Marsh v. Pier, 4 Rawle, 273, 288; Cow. Hill's Notes, 21, note 262.) The general rule is intended to prevent litigation, and preserve peace; and were it otherwise men would never know when they might repose with security on the decisions of courts of justice; and judgments solemnly and deliberately given might cease to be revered as no longer the end of controversy and evidence of right. (Le Guen v. Gouverneur, 1 Johns. Cases, 501, 502.) But without such actual determination on the merits, evidenced by a record which cannot be contradicted, the reason of the rule does not apply, and the evidence ceases to be effective. Thus, where the litigation has ended in a discontinuance, or a nonsuit, so that an *Page 560 actual decision on the merits has not been reached; or where a verdict of a jury, or the finding of a judge or referee has not passed into a judgment, and so become absolutely fixed and final, the proceedings have no conclusive character, and cannot operate as a bar. (Carlisle v. McCall, Hilt. 399; Audubon v.Excelsior Ins. Co., 27 N.Y. 216; Leonard v. Barker, 5 Denio, 220.) It is, therefore, only a final judgment upon the merits, which prevents further contest upon the same issue, and becomes evidence in another action between the same parties or their privies. Until final judgment is reached the proceedings are subject to change and modification; are imperfect, and inchoate, and can avail nothing as a bar, or as evidence, until the judgment, with its verity as a record, settles finally and conclusively the questions at issue. An interlocutory order is not such a judgment. It is not a judgment at all. (Code of Proc., § 245; Belmont v. Ponvert, 3 Robt. 693.) And if as an order it partakes, in equity cases, of the character of what was long known as an interlocutory decree, yet, whenever it is not final; whenever it fails to fix and determine the ultimate rights of the parties; wherever it leaves room for a final decision yet to be made, it is not admissible in another action, for the plain reason that it has finally decided and settled nothing. Until the judgment comes, no man can know what the ultimate decision will be.
It may be conceded that, under the former practice in equity, an interlocutory decree was possible, from which an appeal could have been taken and which, while not the last or closing judgment, was yet so final and definitive in its character, so completely settled all the issues and all the rights of the parties, as to be, in substance, final although interlocutory in form. The Chancellor in Wood v. Byington seems to have viewed the interlocutory decree referred to in that case as possessing this character. The question, however, was not involved in the case, for there the action had been revived against the administrator and passed into a final judgment, and it was the enrolled decree which was received in evidence. Under the Code such a decree has become an order, and the appeal is postponed till the final *Page 561 judgment. The change in that respect has, perhaps, not affected the substantial character of such an order, but at least takes it more decisively out of the range of final judgments. Without pursuing that branch of the discussion it is at least quite plainly settled by the authorities that it is only a final judgment, one which has definitely and conclusively decided the issues and fixed the rights involved, which can be used in another action as a bar or as evidence. (Brinkley v.Brinkley, 50 N.Y. 202; Whitaker v. Bramson, 2 Paine's C.C. 209; Holt v. Miers, 9 C. P. 191; Baugh v. Baugh, 4 Bibb, 556; McLane v. Spence, 11 Ala. 172; Thompson v.Mylne, 4 La. Ann. 206; 2 Whart. on Ev., § 781.)
Was the order in this case of that character? It was not final in form and was not final in substance. It was merely temporary and provisional, and open to change or modification upon the coming in of the referee's report. This appears from two facts. On the one hand the court orders the reference to ascertain whether liability exists or not, and "to the end that further action may be had by the court thereon;" and on the other hand the order itself is directed to be entered "without prejudice to either party." Under the old practice a bill dismissed without prejudice was substantially like a nonsuit in a court of law, and in neither case was the judgment a bar. (Durant v. Essex Co., 7 Wall. 109; Bleight v. M'Ilvoy, 4 Monroe, 142; Thompson v.Clay, 1 J.J. Marsh. 413, 417.) No reference was made to this clause on the argument, and it is possible it related only to the date of the entry of the order, but as it stands it tends to confirm our impression that the order was pro forma merely and not final and conclusive.
The interlocutory order against Buckelew made in his life-time seems to us, therefore, to have been inchoate and provisional. The right of further action was reserved to the court, and of a further hearing on the whole case to the parties. They were not to be prejudiced by the entry of the order. We interpret the reservation of further action to the court, and the care shown for the ultimate rights of the parties to mean that nothing was decided finally; that on the coming in of the *Page 562 referee's report the whole case was to be open for argument and a final decision, in the light of the new facts and the further argument then to be made. Thus viewed the order was in no sense final. The court had merely intimated an opinion but decided nothing, and left that decision to be made in the future. There was, therefore, no such actual determination on the merits; no such definitive judgment as to make it admissible in evidence to affect the legatees of Buckelew in the action against them.
We think, therefore, the General Term were right in reversing the judgment. It follows that the order of the General Term should be affirmed and judgment absolute upon the stipulation be ordered in favor of respondents, with costs.
All concur.
Order affirmed and judgment accordingly.