Briefs of Parties. Forgay v. Conrad, 6 How. 201; Thomson v. Dean, 7 Wall. 342; French v. Shoemaker, 12 Wall. 86, 98; Stovall v. Banks, 10 Wall. 583, 587; 2 Daniel's Chancery Practice, 641; Mills v. Hoag, 7 Paige, 19. Mr. Broadhead and Mr. Haussler filed a brief for the same, citing in addition Barnard v. Gibson, 7 How. 650, 657; Whiting v. Bank of the United States, 13 Pet. 6, 15; Railroad Company v. Swasey, 23 Wall. 405; Green v. Fisk, 103 U. S. 518; Bostwick v. Brinkerhoff, 106 U. S. 3; Bronson v. Railroad Company, 2 Black, 524, 531. Mr. Glover, Mr. Shepley, Mr. S. M. Breckenridge, Mr. Clarence A. Seward, and Mr. F. E. Whitfield filed briefs for the motion, contending, I. The appeal is a matter of statutory right, and in equity lies from final decrees only, Rev. St. § 692, and the court can proceed only as the law prescribes. Barry v. Mercein, 5 Howard, 103, 119; Durousseau v. United States, 6 Cranch, 307, 314; United States v. Curry, 6 How. 106, 113; Ex parte Vallandingham, 1 Wall. 243, 251; United States v. Young, 94 U. S. 258. II. The motion may properly be made at this time. Clark v. Hancock, 94 U. S. 493; Ex parte Russell, 13 Wall. 664, 671; National Bank v. Insurance Company, 100 U. S. 43. III. The motion is based upon the record, and in part upon certificates of the clerk of the court below, which show that proceedings have been taken in the court below since the decree appealed from. The court should receive these in support of the motion. Hudgins v. Kemp, 18 How. 530, 534; Ex parte Bradstreet, 7 Pet. 634; Rush v. Parker, 5 Cranch, 287; Richmond v. Milwaukee, 21 How. 391; The Grace Girdler, 6 Wall. 441; Cook v. Moffatt, 5 How. 295; Lord v. Veazie, 8 How. 251; Cleveland v. Chamberlain, 1 Black, 419; Wood Paper Company v. Heft, 8 Wall. 333; United States v. The Peggy, 1 Cranch, 103; Portland Company v. United States, 15 Wall. 1; Selma, &c., Railroad Company v. Bank, 94 U. S. 253 ; United States v. Ayres, 9 Wall. 608; United States v. Crussell, 12 Wall. 175; United States v. Young, 94 U. S. 258. IV. They show that the decree appealed from was not final. The pleadings presented two issues, 1st. Whether the railways were Opinion of the Court. obliged to do the transportation; 2d. What was a reasonable compensation for it. The first only was decided by the decree appealed from. The second was also a question of law. Union Company v. United States, 104 U. S. 667. What is and what is not a final judgment is discussed in Young v. Grundy, 6 Cranch, 51; Houston v. Moore, 3 Wheat. 433; Gibbons v. Ogden, 6 id. 448; The Palmyra, 10 id. 502; The Santa Maria, 10 id. 431, 444; Chace v. Vasquez, 11 id. 429; Canter v. American Insurance Company, 3 Peters, 307; Brown v. Swan, 9 id. 1; Young v. Smith, 15 id. 287; Forgay v. Conrad, 6 How. 201; Perkins v. Fourniquet, 6 id. 206; Pulliam v. Christian, 6 id. 209; Barnard v. Gibson, 7 id. 650; United States v. Girault, 11 id. 22, 32; Fourniquet v. Perkins, 16 id. 82; Craighead v. Wilson, 18 id. 199; Beebe v. Russell, 19 id. 283; Farrelly v. Woodfolk, 19 id. 288; Humiston v. Stainthorp, 2 Wall. 106; Thomson v. Dear, 7 id. 342; Railroad Company v. Swasey, 23 id. 405. These cases show that the policy of the law and the decisions of the court are alike adverse to fragmentary appeals. The practice in patent cases may be referred to. V. The decree appealed from was pronounced at the March term of court in 1882. In June, 1882, at the same term, further decree was made modifying the decree appealed from. This being done at the same term of court, was done while the court had control of the case, Railroad Company v. Bradleys, 7 Wall. 575; Bassett v. United States, 9 Wall. 38; Ex parte Lange, 18 Wall. 163; Bronson v. Shulten, 104 U. S. 410, 415, and operated to reopen the previous decree, and let in proof material to the issues, and requiring further action of the court. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. After stating the facts in the language above cited, he continued: As we have had occasion to say at the present term, in Bostwick v. Brinkerhoff, 106 U. S. 3, and Grant v. Phænix Insurance Company, 106 U. S. 429, a decree is final, for the purposes of an appeal to this court, when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been Opinion of the Court. determined. Under this rule we think the present decree is final. The suit was brought to compel the railway company to do the express company's business. The controversy was about the right of the express company to require this to be done on the payment of lawful charges. It was no part of the object of the suit to have it definitely settled what these charges should be for all time. The point was to establish the liability of the railway company to carry. The decree requires the carriage, and fixes the compensation to be paid. It adjudges costs against the railway company, and awards execution. Nothing more remains to be done by the court to dispose of the case. Inasmuch as the rates properly chargeable for transportation vary according to circumstances, and what was reasonable when the decree was rendered may not always continue to be so, leave is given the parties to apply for a modification of what has been ordered in that particular if they, or either of them, shall desire to do so. In effect the decree requires the railway company to carry for reasonable rates, and fixes for the time being the maximum of what will be reasonable. The controversy which the express company has had referred to the master, about the compensation to be paid for the transportation during the pendency of the suit, does not enter into the merits of the case. All such matters relate to the administration of the cause, and the accounts to be settled under the present order are of the same general character as those of a receiver who holds property awaiting the final disposition of a suit. They are incidents of the main litigation, but not necessarily a part of it. The supplemental order, made after the decree, relates only to the settlement of the accounts which accrued pending the suit. The motion to dismiss is denied. Opinion of the Court. MISSOURI, KANSAS AND TEXAS RAILWAY COM- APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE Decided January 29th, 1883. Appeal-Certificate of Transcript-Certiorari-Final Decree-Jurisdiction. 1. On the merits of the motion there is no essential difference between this case and the case of the St. Louis, Iron Mountain and Southern R. R. Co. v. The Southern Express Company, just decided. Reference to the master to take and state an account between the parties as to the compensation during the litigation and up to its final termination relates to matters of administration not involving the merits. 2. A certificate that the transcript is a "true, full and perfect copy from the record of all the proceedings in the suit" is sufficient to give jurisdiction. 3. If the certificate is not correct, the remedy is by certiorari. 4. Where on the face of the decree it appears that a case was disposed of on demurrer to the bill, the evidence on file is not necessary for the hearing of the bill. 5. When a record has not been printed, and parties do not agree as to its contents, certiorari may be granted, reserving all questions till return. Motion by appellees to dismiss the appeal; and, in case of denial of this motion, for certiorari to bring up record and proofs from below. Mr. Clarence A. Seward, Mr. C. W. Blair and Mr. F. E. Whitfield for the motion. Mr. A. T. Britton, Mr. J. H. McGowan, Mr. Thomas J. Portis, Mr. A. L. Williams and Mr. A. F. Dillon against it. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This motion to dismiss is made because, as is alleged, 1, the decree appealed from is not a final decree, and, 2, the transcript is not properly certified. 1. As to the decree. The case is in some particulars different from that of the St. Louis, Iron Mountain & Southern Railway Company v. The Southern Express Company, just decided, but in our opinion the differences do not materially affect the present question. Opinion of the Court. The decree in this case, as in that, requires the railway company to carry for the express company, and fixes the rate of compensation, "until the further order or decree of this [circuit] court." In this case, the reference to the master "to take and state an account between the parties as to the compensation that should be and has been paid during the litigation, and up to the final termination thereof," was entered before or at the time of the decree from which the appeal was taken. Still, in this, as in that, the reference is in respect to matters affecting the administration of the cause, and does not involve the merits. The reservation of power to change the rates operates only on the future, and was evidently intended for the purpose of enabling the court to act in case a change should be required. As the decree stands, the express company can require the railway company to carry at the rate which has been fixed. 2. As to the certificate. The clerk certifies the transcript sent up to be "“a true, full and perfect copy from the record of all the proceedings in the suit." Certainly this is sufficient for all the purposes of jurisdiction. If, in point of fact, the certificate is not true, the remedy is by certiorari, to supply deficiencies, and not by motion to dismiss. To meet this view of the case the appellee suggests diminution and asks for a certiorari, to bring up "the evidence taken before William H. Rossington, as examiner, remaining on file in the office of the clerk, constituting exhibits, depositions, and proofs used on the argument of the cause in the circuit court." Upon the face of the decree it appears that the case was disposed of on demurrer to the bill. If that be the truth, the evidence on file is not necessary for the hearing of the appeal, but as the record, which is here, has not been printed in full, and the parties do not agree in their statements as to what it contains, we will grant the certiorari asked for, reserving all further questions until the return is made. |