dissenting:
I cannot agree with the conclusion in the foregoing opinion that the decree of the circuit court was final In my judgment it was interlocutory. The courts have not laid down a satisfactory definition of what is an interlocutory decree. Generally, when anything is to be done to complete the decree it is not final but interlocutory. (2 Daniell’s Ch. Pl. & Pr.—6th Am. ed.—*986, note 3.) “It is not practicable to settle any test which will be applicable in every case, so as to separate into classes those orders which are appealable and those which are not. There are many cases which are obviously appealable; there are some as obviously not appealable. But there is an intermediate class which cannot be reduced to any fixed rule. When this latter class is to be dealt with, it would seem that this court is called upon to exercise a special judgment in each case, in view of its peculiar circumstances.” (Camden and Amboy Railroad Co. v. Stewart, 21 N. J. Eq. 484; 2 Beach on Modern Eq. Pr. sec. 938.) When a decree leaves something more to be done than the mere ministerial execution of an order it is interlocutory and not final for the purpose of appeal, even though it settles the equities of the bill. (Lodge v. Twell, 135 U. S. 232; 2 Beach on Modern Eq. Pr. sec. 949.) Where the basis of a decree embracing the equities of a bill is found but the distribution among the parties in interest depends upon the facts to be reported by the master, until the court shall have acted upon such report and sanctioned it the decree is not final. Craighead v. Wilson, 18 How. 199.
This court held, on a bill for partnership accounting, that an interlocutory decree settling the rights of the several partners and determining the basis of the settlement should be first entered and then that the cause should be referred to a competent master to state the accounts. (Moss v. McCall, 75 Ill. 190.) To the same effect are Mosier v. Norton, 83 Ill. 519, and Moffett v. Hanner, 154 id. 649. In Chicago and Northwestern Railway Co. v. City of Chicago, 148 Ill. 141, we said (p. 153) : “A judgment or decree is said to be final when it terminates the litigation between the parties on the merits of the case, so that, when affirmed by the reviewing court, the court below has nothing to do but to execute the judgment or decree it had already entered, and when the complainant or plaintiff is' entitled to have the decree or judgment carried immediately into execution. Where a decree or judgment is final the proceed-i-ngs under it are only a mode of executing it, like the award of an execution.” In Gage v. Eich, 56 Ill. 297, the same situation as to pleadings existed as in this case, and the order entered after the defendant had elected to stand by his demurrer stated “that all the material facts alleged in said bill of complaint are true and that the said complainants are justly and equitably entitled to the relief therein prayed for. * * * This court * * * doth order that it be and it hereby is referred to one of the masters of this court to compute and ascertain the amount justly due and owing to the defendant.” In deciding this case we said that “it is a well settled rule in equity practice, as well as in proceedings at common law, that no appeal lies from any interlocutory order, merely;” and that “in this case there has been no final decree,—nothing, indeed, but overruling a demurrer to the bill and a reference to the master to state an account and to report the same to the court. The case is yet in fieri, and no appeal can lie.”
This decree contains no provision that appellant should pay any amount ordered to be charged against it in the accounting and no execution was ordered or could issue thereon. Before the appellee could receive any relief thereunder it required a further order of court deciding equities that were material to the issues. It might readily be apprehended from the pleadings that one of the chief points of contention before the master in the taking of evidence and on any report made by him would be whether corsets manufactured by appellant were manufactured under this contract or under some other rights of appellant acquired either by a patent of its own or by license from others, so that the master would have something more than the mere mathematical work of computing the number of corsets manufactured. The circuit court, by the decree in question, merely declared the rights of the parties and the rules to be adopted in stating the account. Material issues still remain undisposed of. If the reformation of the contract and the order that' appellant should pay appellee $1728 per year for the three years in question were the only material points covered by the bill, then appellant’s contention should be upheld. The decree, however, provides otherwise. Apparently, the provisions just referred to are but a small part of the controversy. Appellant should not be permitted to bring its case here by piecemeal, but the case should be finally disposed of on all the material issues before it is entitled to appeal. Sholty v. Sholty, 140 Ill. 81.
I think this decree is interlocutory and not final because it does not fully decide and fully dispose of the merits of the case. (Mills v. Hoag, 7 Paige’s Ch. 18; Gray v. Ames, 220 Ill. 251.) It is not final also because the appellee, in whose favor it is made, cannot obtain any benefit therefrom without again having the case passed upon by the trial court. (Johnson v. Everett, 9 Paige’s Ch. 636.) On the facts set out in the pleadings I am of the opinion that the judgment of the Appellate Court should be affirmed and the order in question held to be interlocutory.