Opinion
December Term, 1850
S. Stevens, for the respondents.
B.W. Bonney, for the appellant.
As no question was reserved, and nothing remained to be done beyond computing the amount due on the mortgage, the decree was final within the meaning of that term under the former practice, although questions might possibly arise on the reference which would bring the cause again before the court. But we think the decree was not final, for the purposes of an appeal, under the present practice. It is the policy of the code to allow only one appeal to this court in the same cause; which can not be brought until after the suit is at an end in the court of original jurisdiction. There may be an appeal to this court from "a judgment," which is defined by the code to be "the final determination of the rights of the parties in the action." (§ 11, 245.) And when the appeal has been perfected, the clerk is directed to transmit to this court a certified copy of "the judgment roll," which can not exist until after the amount of the recovery has been ascertained. (§ 328; and see Supp. Code, § 2, sub. 3.) But although the decree, at the time it was affirmed by the supreme court in general term, was not final within the meaning of the code, so as to authorize an appeal to this court, we think it became final when the referee's report of the amount due on the mortgage was afterwards confirmed, and that the appeal which was then taken from the decree was authorized by law. There is undoubtedly a want of strict accuracy in calling the same decree final at one time, and not so at another; but the construction which we have given to the statute is the only one which will secure the right of review, and at the same time give effect to the manifest intention of the legislature to abolish the former practice, which allowed several appeals in different stages of the same cause, and restrict the parties to one appeal, to be brought after final judgment.
The merits of the order confirming the report, will not come under review on the appeal, because it was taken by default, and at a special term; and an appeal will only lie from an "actual determination" made "at a general term." (§ 11.) Still it will be proper to have that order before us, for the purpose of showing that the decree of the supreme court had become final before the appeal was taken.
Motion denied.