FINAL DECREE

A decree is final which determines and definitely settles the rights of the contending parties, relatively, with reference to the subject matter of the controversy, that is, when the relative quantity of the interest of each of the parties is judicially fixed so that nothing remains but to carry out that adjudication in detail, as, for instance, by reference to a master to take evidence and report upon an accounting, between the parties, according to some basis fixed by the decree, or to ascertain the money equivalent of each of the interests, or to make a sale for a division of the proceeds. Rice v. Dougherty, 148 Ill. App. 378.

Where a decree finally decides and disposes of the whole merits of the controversy, reserving no questions and requiring no further directions for the future judgment of the court as between the parties and over the same subject matter, it is a final decree. Adamski v. Wieczorek, 66 Ill. App. 584.

Determination of Finality.

The question whether a decree is final or not is to be determined by its contents and its substance and effect, and not by the intention of the chancellor, or by the fact that he chooses to call the decree "interlocutory." Rice v. Dougherty, 148 Ill. App. 379. To the same effect see Loughlin v. U. S., etc., Co., 118 Ill. App. 41.

Disposition as to All Parties.

A decree dismissing a bill as to some of the parties and leaving it pending as to others is not a final decree, (Pain v. Kinney, 175 Ill. 266; Dreyer v. Goldy, 171 Ill. 436; Bucklen v. Chicago, 166 Ill. 454; Gunn v. Donoghue, 135 Ill. 481; Hutchinson v. Ayres, 117 Ill. 567; International Bank v. Jenkins, 109 Ill. 224; Thompson v. Follansbee, 55 Ill. 428; Dillon v. Groswold, 118 Ill. App. 631; Loughlin v. U. S., etc., Co., 118 Ill. App. 40; Maley v. Lake Erie & W. R. Co., 84 Ill. App. 57) and the same is true of a judgment in an action on a bond, where all obligors are sued, but which leaves the case pending and undisposed of as to the principal and one of the sureties. People v. Jamison, 141 Ill. App. 409.

Pope-35

FINAL DECREE

Necessity for Approval and Filing.

A decree is not final until it is approved by the chancellor and filed for record. Horn v. Horn, 234 Ill. 274.

Decree Not Disposing of Entire Controversy.

Where a demurrer to a bill for an account is sustained and the bill dismissed, and the complainant later files a bill of review, to which defendant demurs, but is overruled, and he abiding his demurrer, a decree is made taking the bill of review as confessed, the former decree set aside, and defendant ordered to answer the original bill, such last named decree is not a final decree. Gardner V. Dwelling House, etc., Co., 44 Ill. App. 156.

A decree in a separate maintenance proceeding finding complainant entitled to the relief prayed, but continuing the cause to hear evidence as to the amount defendant should pay without finally adjudicating that question, is not a final decree. Hunter v. Hunter, 100 Ill. 521.

Need Not Be Last Order.

A final decree is not necessarily the last order in a case as orders sometimes follow merely for the purpose of carrying out or executing the matters which the decree has determined. Klein v. Independent, etc., Co., 231 Ill. 603; Rhodes v. Rhodes, 172 Ill. 189; Ames v. Ames, 148 Ill. 335; Allison v. Drake, 145 Ill. 510; Myers v. Manny, 63 Ill. 213; Rosenthal v. Board of Education, 141 Ill. App. 140; Wheelberger v. Knights, 71 Ill. App. 333.

Retention of Cause.

A decree retaining the cause for the future determination of matters of substantial controversy between the parties is not final. Rosenthal v. Board of Education, 239 Ill. 36; Barber v. Tolman, 176 Ill. App. 128; Rosenthal v. Board of Education, 141 Ill. App. 138; Brodhead v. Minges, 99 Ill. App. 439.

Setting Aside Judgment at Law.

A decree setting aside judgments rendered at law is a final decree, (Hilt v. Heimberger, 235 Ill. 245) but is other

FINAL DECREE

wise where the judgment is set aside by the court which granted it, although erroneously. Walker v. Oliver, 63 Ill. 200.

Matter Distinct from General Subject of Litigation.

A decree dealing with a matter distinct from the general subject of the litigation, and finally disposing of all questions involved in such matters is a final decree, Mutual, etc., Ass'n v. Smith, 169 Ill. 268) as for example, where the court allows a motion for a new trial, such allowance being a final determination of the issues involved in the application. Cook County v. Calumet, etc., Co., 131 Ill. 512, but see contra Williams v. La Valle, 64 Ill. 111.

Refusing Bill of Review.

A refusal to grant leave to file a bill of review on the ground of newly discovered evidence, or an order striking a petition for such leave, is a final determination of the sufficiency of such evidence. Adamski v. Wieczorek, 170 Ill. 375.

Ruling on Demurrer.

A decree sustaining a demurrer to a cross bill, (Fleece v. Russell, 13 Ill. 33) or to the bill, although directed to the very elements of the cause of action, (Knapp v. Marshall, 26 Ill. 63; Meyer v. Decatur, 134 Ill. App. 386; People v. Severson, 113 Ill. App. 497) or to a petition for mandamus (Benevolent, etc., Department v. Farwell, 5 Ill. App. 241) are none of them final, nor is an order overruling a demurrer to the bill (Hayes v. Caldwell, 10 Ill. 35) or dissolving an injunction, where the bill is not dismissed, and where relief is prayed for other than the injunction. Pentecost v. Magahee, 5 Ill. 327. To the same effect see Cornelius v. Coons, 1 Ill. 37.

Reference to Master as Affecting.

Where a decree is a final adjudication of the substantial rights of the parties, it is none the less final because it refers the cause to a master for some particular purpose in connection with the execution of the decree. Johnson v. Northern, etc., Co., 265 Ill. 266; De Grasse v. H. W. Gossard Co., 236 Ill. 76; Klein v. Inde

FINAL DECREE

pendent, etc., Co., 231 Ill. 603; Piper v. Piper, 231 Ill. 77; Crowe v. Kennedy, 224 Ill. 530; Gray v. Ames, 220 Ill. 254; Stahl v. Stahl, 220 Ill. 190; Rhodes v. Rhodes, 172 III. 189; Allison v. Drake, 145 III. 110; Barber v. Tolman, 176 Ill. App. 128.

Dismissing Bill.

A decree dismissing a bill for divorce on hearing is a final decree. People v. Case, 241 III. 287.

Appointment or Removal of Receiver.

A decree appointing or removing a receiver is not a final decree, since such a decree does not determine any right or affect the title of either party to the property. Vandalia v. St. Louis V. & T. H. R. Co., 209 I. 80; Chicago, etc., Works v. Illinois, etc., Co., 153 Ill. 15; Farson v. Gorham, 117 Ill. 140; Coates v. Cunningham, 80 Ill. 468; Lewis v. New, etc., Co., 100 Ill. App. 419.

Foreclosure Decree.

A decree in a foreclosure proceeding finding the debt to be due and unpaid and that the lien of the mortgage attached to the land and directing it to be paid within the designated period is a final decree although the decree also directs that in default of payment the land be sold by the master and report thereof made at the next term of court. Rhodes v. Rhodes, 172 Ill. 189. To the same effect see Chicago & N. W. Ry. Co. v. Chicago, 148 III. 153; Myers v. Manny, 63 Ill. 213.

A decree foreclosing a mortgage and decreeing a sale of the mortgaged premises is a final decree, and this even though the master is ordered to make a report of the sale. Kirby v. Runals, 140 Ill. 295.

Conditional Deficiency Decree.

A conditional deficiency decree is not final. Huggins v. Gottschalk, 195 Ill. App. 65.

Final Disposition.

Such a disposition that nothing further remains to fix the rights and obligations of the parties, and no further controversy or litigation is required or can arise on the matter. It is such an award

FINAL JUDGMENT

that the party against whom it is made can perform or pay it, without any further ascertainment of rights or duties. Colcord v. Fletcher, 50 Me. 401.

Final Hearing.

The words "final hearing" have long been used to designate the trial of an equity case upon the merits, as distinguished from the hearing of any preliminary questions arising in the cause, and which are termed interlocutory. Akerly v. Vilas, 24 Wis. 171.

FINAL JUDGMENT.

What Constitutes.

Such a judgment or decision as settles the rights of the parties in respect to the subject matter of the suit, and concludes them until it is reversed or set aside. Ex parte Thompson, 93 Ill. 90; Woodside v. Woodside, 21 Ill. 207; Keel v. Bently, 15 Ill. 228; Hayes v. Caldwell, 10 Ill. 35.

One that finally disposes of the rights of the parties, either upon the entire controversy, or upon some definite and separate branch thereof. Bailey v. Conrad, 271 Ill. 295; Park Ridge v. Murphy, 258 Ill. 367. To a similar effect see Allison v. Drake, 145 Ill. 510; Myers v. Manny, 63 Ill. 213; Rosenthal v. Board of Education, 141 Ill. App. 140.

A final judgment is one finally determining the rights of the parties with reference to the particular suit, and not necessarily their rights with reference to the subject matter of the litigation. Mutual, etc., Ass'n v. Smith, 169 Ill. 265; Cook County v. Calumet, etc., Co., 131 III. 512.

A judgment which disposes of, or finds, all the issues in the cause in favor of defendant and awards costs against plaintiff is a final judgment although not in strictly proper legal form. Wenom v. Fossick, 213 Ill. 72.

A judgment, decree, sentence or order passed by a court of competent jurisdiction which settles or determines a contested right, or which fixes a duty upon one of the parties litigant, is final as to the parties themselves and all persons claiming under them. Kirby v. Runals, 37 Ill. App. 192.

FINAL JUDGMENT

It is the termination of the particular action which marks the finality of a judgment. Vickers, J., dissenting opinion Cramer v. Commercial, etc., Ass'n, 260 Ill. 525; Mutual, etc., Ass'n v. Smith, 169 Ill. 265; Swanson v. Smith, 185 Ill. App. 444.

A judgment which puts an end to the suit, at least until it is reversed or set aside. Scholfield, J., dissenting opinion Cook County v. Calumet, etc., Co., 131 Ill. 518.

The phrase "final judgment" has two meanings. It may indicate the judgment which, if not reversed or modified, will end the litigation in which it is entered, but which may be reversed or modified by a superior tribunal, and which therefore gives to the party aggrieved the right to invoke the action of the higher court. The phrase may also mean that judgment which in fact does end the litigation, by an order of the court in which the cause was begun, or of some higher court to which it is carried, entered in the cause itself, and by virtue of the process by which the suit was commenced. Russia Cement Co. v. Le Page Co., 174 Mass. (1899) 349.

"I think we ought to give to the words 'final judgment' * * their strict and proper meaning, i. e., a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established, unless there is something to shew an intention to use the words in a more extended sense." Lord Esher, M. R., in Onslow v. Inland Revenue Comrs., 25 Q. B. D. 466, quoting Cotton, L. J., in Ex parte Chinery, 12 Q. B. D. 342.

"The mere fact that the judgment puts an end to and finally settles the controversy which arose in the particular proceeding, is not of itself sufficient to make it a final and conclusive judgment upon which an action may be maintained in the courts of this country, when such judgment has been pronounced in a foreign court * in order to establish that such a judgment has been pronounced it must be shewn that in the court by which it was pronounced it conclusively, finally, and forever established

FINAL JUDGMENT

the existence of the debt of which it is sought to be made conclusive evidence in this country, so as to make it res judicata between the parties." Per Lord Herschell in Nouvion v. Freeman, 15 App. Cas. 1.

Blackstone's Definition.

Such a judgment as at once ends the action by declaring either that the plaintiff has or has not the right to the remedy for which he sues. Vickers, J., dissenting opinion Cramer v. Commercial, etc., Ass'n, 260 Ill. 524.

Elements of Finality.

To be final a judgment must settle and conclude the rights involved in the action, and deny to the party the means of further prosecuting or defending the suit. Vickers, J., dissenting opinion Cramer v. Commercial, etc., Ass'n, 260 Ill. 524; Swanson v. Smith, 185 Ill. App. 444.

A judgment or decree is final only where it terminates the litigation between the parties on the merits, so that on affirmance the court below need only proceed with its execution, (Rosenthal v. Board of Education, 239 Ill. 36; Carter, J., dissenting opinion De Grasse v. H. W. Gossard Co., 236 Ill. 81; Stahl v. Stahl, 220 II. 190; Glos v. Clark, 199 Ill. 149; Callahan v. Ball, 197 Ill. 323; Rhodes v. Rhodes, 172 Ill. 190; Gade v. Forest Glen, etc., Co., 158 Ill. 43; Chicago & N. W. Ry. Co. v. Chicago, 148 Ill. 153; Dow v. Blake, 148 Ill. 85; Chicago, etc., Co. v. Auditor of Public Accounts, 100 Ill. 483; Barber v. Tolman, 176 Ill. App. 128; Rosenthal v. Board of Education, 141 Ill. App. 139; Dillon v. Griswold, 118 Ill. App. 631; Lewis v. New, etc., Co., 100 Ill. App. 418; Brodhead v. Minges, 99 Ill. App. 440; Sweet v. Merki, 27 Ill. App. 246) and when the party in whose favor it is rendered is entitled to have it carried immediately into execution. Carter, J., dissenting opinion De Grasse v. H. W. Gossard Co., 236 Ill. 81; Stahl v. Stahl, 220 II. 190; Chicago & N. W. Ry. Co. v. Chicago, 148 Ill. 153.

Form as Affecting.

Although technically a judgment ought, in order to be final, to contain a state

FINAL JUDGMENT

ment that "it is considered by the court that the plaintiff take nothing by the writ, and that defendant go hence without day," or words of similar import disposing of the whole matter of the litigation, (Wenom v. Fossick, 213 Ill. 71; Olson v. Whiffen, 175 Ill. App. 184; Fowley v. Thompson, 173 Ill. App. 335; Bonnell v. Campbell, 143 Ill. App. 252; People v. Severson, 113 Ill. App. 497; CuttingKaestner Co. v. Goldberg, 107 Ill. App. 593) the form of the judgment is immaterial, and it is final if it in some form shows distinctly and not inferentially that the matters in the record have been finally disposed of in favor of one of the litigants, or that the rights of the parties in litigation have been finally adjudicated. Morgan Hastings Co. v. Gray, etc., Co., 108 Ill. App. 99; Cutting-Kaestner Co. v. Goldberg, 107 Ill. App. 593.

Where the only record of a judgment in the trial court is the entry "and judgment on the verdict for" a named sum, there is no final judgment. Metzger v. Morley, 184 Ill. 85.

Necessity for Hearing on Merits.

It is not necessary, in order to constitute a final judgment, that it should be the result of a hearing on the merits, and a judgment of non-suit or dismissal, or on demurrer, may be final. Vickers, J., dissenting opinion Cramer v. Commercial, etc., Ass'n, 260 Ill. 524; Mutual, etc., Ass'n v. Smith, 169 Ill. 265.

Orders Affecting Judgments by Default or on Confession.

A judgment denying a motion to set aside a default and vacate a judgment in order to allow a defense is a final judgment, (Park Ridge v. Murphy, 258 III. 366) and the same is true of the denial of a motion to vacate a judgment by confession to let in a defense, (Lake v. Cook, 15 Ill. 356) but where the motion is allowed, the order allowing it is not final. Park Ridge v. Murphy, 258 Ill. 366.

Order Awarding Costs.

An order awarding costs to a party without more is not a final judgment, (Wenɔm v. Fossick, 213 Ill. 71; Olson v.

FINAL JUDGMENT

Whiffen, 175 Ill. App. 184; Fowley v. Thompson, 173 Ill. App. 335; Bonnell v. Campbell, 143 Ill. App. 252; Meyer v. Decatur, 134 Ill. App. 386; Dunkelbarger v. McFerren, 134 Ill. App. 395; People v. Severson, 113 Ill. App. 497; CuttingKaestner Co. v. Goldberg, 107 Ill. App. 593; Lee v. Yanaway, 52 Ill. App. 25) since the costs are but an incident to a final judgment. Meyer v. Decatur, 134 Ill. App. 386; People v. Severson, 113 Ill. App. 498; Cutting-Kaestner Co. v. Goldberg, 107 Ill. App. 593; Lee v. Yanaway, 52 Ill. App. 25.

Interlocutory Orders.

An order striking a cause from the trial docket, or a subsequent order refusing to reinstate it upon the docket is not a final order. Morgan Hastings Co. v. Gray, etc., Co., 108 Ill. App. 99; CuttingKaestner Co. v. Goldberg, 107 Ill. App. 593.

Appellate Court Judgments.

Where a mortgagee obtains a decree of foreclosure against one who is afterwards adjudged a bankrupt, and where on a writ of error by the assignee in bankruptcy to reverse the decree the mortgagee pleads the bar of the statute of limitations provided by the Bankruptcy Act of 1867, a judgment of the Appellate Court sustaining a demurrer to the plea, reversing the decree below, and remanding the cause is a final judgment, since the writ of error is a new suit, which is finally disposed of by the judgment. International Bank v. Jenkins, 104 Ill.

149.

A judgment of the Appellate Court reversing the judgment of the circuit court and remanding the cause for further proceedings is not final, (Callahan v. Ball, 197 Ill. 323; Gade v. Forest Glen, etc., Co., 158 Ill. 43; Jones v. Fortune, 128 Ill. 520; Anderson v. Fruitt, 108 Ill. 379; Harzfeld v. Converse, 105 Ill. 537; Buck v. Hamilton County, 99 Ill. 508) and the same is true where the judgment below is reversed in part and affirmed in part. Gade v. Forest Glen, etc., Co., 158 Ill. 43; International Bank v. Jenkins, 109 Ill.

224.

FINAL JUDGMENT

Attachment Proceedings.

Where after the commencement of an action in assumpsit plaintiff also commences an attachment proceeding, and also takes judgment in assumpsit, an order striking the attachment proceeding on the ground that plaintiff had abandoned it by taking judgment on the merits is, as to the attachment proceeding, a final judgment. Hemphill v. Collins, 117 Ill. 398.

Drainage Proceedings.

as

Where a proceeding is merely for condemnation, in which the owners of the land sought to be condemned seek to attack the organization of a levee district, the order confirming the report of the commissioners and establishing the district is properly spoken of final, (Damon v. Barker, 239 Ill. 640; Smith v. Claussen Park District, 229 Ill. 161; Cleveland C. C. & St. L. R. Co. v. Polecat, etc., District, 213 Ill. 86) but where the end contemplated by the proceedings is not merely the establishment of a drainage district but also the assessment upon the lands benefited of the amount necessary to pay the expenses of the work, and the damages occasioned thereby, the final order is the confirmation of the assessment roll, and not the order establishing the district. Damon v. Barker, 239 Ill. 640; Mack v. Polecat, etc., District, 216 Ill. 63.

Local Improvement Proceedings.

No judgment in a local improvement proceeding is a "final judgment," within the meaning of section 32 of the act of 1897 (J. & A. ¶ 1420), known as the Local Improvement Act, relating to proceedings pending appeal from the judgment of the county court in such a proceeding, unless judgment has been entered on the re-cast roll, if the roll is ordered to be re-cast. Evanston v. Knox, 241 Ill. 468.

Proceeding for an Accounting.

In actions of account the final judgment is upon the report of the auditors and not the order adjudging defendant liable to submit to an accounting. Lee v.