Pitman v. Thornton

Peters, J.

This is a bill in equity, and the cause was referred under an ordinary rule of court. An award was returned and ac■cepted, at nisi priusj in Cumberland county, at the April term of court in 1874. The referee stated his conclusions merely, and *99determined “that the proper decree be entered accordingly.” No form of decree being decided upon by the referee, it was necessary that one should be passed upon and settled by the court. Questions arose between the parties, as to what the form of the decree should be, and none having been adopted, at the April term of the court in 1875, upon motion of the respondents, the whole case was again sent to the referee. The presiding justice allowed the motion for recommitment, “as a matter of law,” in order to afford to the complainants an opportunity to except thereto. (See Rowell v. Small, 30 Maine, 30). So that this question is precisely presented: Had the court the legal power to exercise the discretion to recommit 2

The award of a referee, in a suit in equity, stands upon the same footing as a master’s report, except that more authority is usually conferred upon a referee than upon a master. In either case the court has the power to accept, reject or recommit reports, according to the exigencies demanding its interference, at any time until there has been a final decree. Asp v. Warren, 108 Mass., 587. Mayberry v. Morse, 39 Maine, 105. The complainants, however, contend that the acceptance of the award in 1874, and the adjournment of that term of the court, sine die, operated as a final disposition of the case, equivalent to the effect of a final decree; and that after that time there was no remedy open to the respondents but by a new and independent proceeding through a bill of review.

According to the general practice in English chancery, and wherever that practice is adopted by any of the United States, proceedings are regarded as at an end in a case, when the decree has been signed and enrolled. The enrolled decree is the sentence and final decision of the court. It is then a record. It can then be pleaded as a bar or estoppel, and execution can issue upon it. In our practice, (where decrees are not enrolled,) a final decree and judgment thereon are considered as equivalent to an enrolment, and have the same effect; and a decree is regarded as recorded, when formally drawn out and finally adopted and placed on file, although it may not be spread upon the records until some time afterwards.

*100It is apparent enough that there had not been a final disposition of the case at bar. If the referee had dictated what the form of the decree should be, it might have been so. But while he determined the fact that the complainants might redeem the mortgaged premises upon the payment of a certain amount, no time was fixed by the referee within which such payment should be made or the right of redemption be lost as a consequence of nonpayment, and those matters were left by him to be perfected by the subsequent action of the court. The case was properly retained upon the docket till the pending questions had become adjudicated. There had been no final decree. There was no decree at all. There had been merely an award that there should be a decree. This conclusion is abundantly supported and illustrated by the following authorities. The other points, raised by the learned counsel of the complainants, in this view, become unimportant. Stone v. Locke, 48 Maine, 425. Clapp v. Thaxter, 7 Gray, 384. Thompson v. Goulding, 5 Allen, 81; Park v. Johnson, 7 Allen, 378. Mills v. Hoag, 7 Paige, 18. Barb. Ch. Prac., vol. 1, 356, et passim. 2 vol., Dan. Ch., 175.

Exceptions overruled.

Appleton, C. J., Walton, Barrows and Virgin, JJ., concurred. Daneorth, J., did not sit.