Opinion
Jacob M. Blake, of San Francisco, Cal., for appellant.
John B. Clayberg, Welles Whitmore, and Clayberg & Whitmore, all of San Francisco, Cal., for appellees Woodward.
W. H. H. Hart, of San Francisco, Cal., for appellee Monetary Trust Company.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
GILBERT, Circuit Judge (after stating the facts as above).
The appellees move to dismiss the appeal on the ground that the decree is not final. In McGourkey v. Toledo & Ohio Ry. Co., 146 U.S. 536, 545, 13 Sup.Ct. 170, 172 (36 L.Ed. 1079), the court observed that the cases on the subject of the finality of decrees 'are not altogether harmonious.' Both parties to this appeal cite decisions of the Supreme Court in support of their respective contentions. But the question, so far as the present case is concerned, is, we think, not difficult of solution. In determining whether a decree which does not dispose of the whole case is final, so as to allow of an appeal, the controlling question is whether the decree finally determines some separable portion of the case in such a way that the defendant may be injured by denying him an appeal at that stage of the proceedings. In Forgay v. Conrad, 6 How. 204 (12 L.Ed. 404), Chief Justice Taney said:
'When the decree decides the right to the property in contest, and directs it to be delivered up, * * * or directs it to be sold, * * * and the complainant is entitled to have (it) carried immediately into execution, the decree must be regarded as final to that extent, * * * although it (may be) necessary * * * by a further decree (to adjust) the accounts between the parties.'
In Perkins v. Fourniquet, 6 How. 206, 12 L.Ed. 406, the court said:
'The appellant is not injured by denying him an appeal in this stage of the proceedings, because these interlocutory orders and decrees remain under the control of the Circuit Court, and subject to their revision, until the master's report comes in and is finally acted upon by the court, and the whole of the matters in controversy between the parties disposed of by a final decree.'
In Pulliam v. Christian, 6 How. 209, 12 L.Ed. 408, the decree set aside a deed, and directed the trustees under that deed to deliver up all property remaining in their hands undisposed of, but without deciding how far they might be liable for the proceeds of sales previously made, and it directed that an account be taken of those proceeds. It was held that the decree was not appealable. The court said:
'There is no sale or change of the property ordered which can operate injuriously to the parties.'
In Beebe v. Russell, 19 How. 283, 15 L.Ed. 668, the decree was that the defendants execute conveyances of certain pieces of property which were alleged to have been fraudulently withheld from the plaintiff, and it then referred the matter to a master to take an account of rents and profits received upon that property. The decree was held not appealable. On the other hand, in Thomson v. Dean, 7 Wall. 342, 19 L.Ed. 94, and in Winthrop Iron Co. v. Meeker, 109 U.S. 180, 3 Sup.Ct. 111, 27 L.Ed. 898, it was held that, where a decree decided the right to property in contest and directed that it be delivered by the defendant to the complainant, it is a final decree, although the court below retains possession of the decree for the purpose of adjusting accounts. But in the case at bar there is no decree directing the transfer of property from the appellant to the appellees, or to the Monetary Trust Company. So far as the title to the shares of stock is concerned, the decree goes no further than to establish the necessary premise to an accounting. It declares that the transfer was fraudulent, that it vested no title, that the shares of stock still remain the property of the Trust Company, and that that company is entitled to have them restored to its name on the books of the Point Richmond Canal & Land Company. But there is no decree that the shares be
Page 310.
surrendered by the appellant, or that they be transferred or assigned to the Monetary Trust Company. There is nothing in the decree upon which execution can issue, and there is no necessity of an appeal for the immediate protection of the appellant's rights. See, also, Craighead v. Wilson, 18 How. 199, 15 L.Ed. 332; Keystone Iron Co. v. Martin, 132 U.S. 91, 10 Sup.Ct. 32, 33 L.Ed. 275; Lodge v. Twell, 135 U.S. 232, 10 Sup.Ct. 745, 34 L.Ed. 153; McGourkey v. Toledo & Ohio Ry., 146 U.S. 536, 13 Sup.Ct. 170, 36 L.Ed. 1079; California National Bank v. Stateler, 171 U.S. 447, 19 Sup.Ct. 6, 43 L.Ed. 233; Maas v. Lonstorf, 166 F. 41, 91 C.C.A. 627. Under the plain rule of the decisions cited, we hold that the decree is not final.
The appeal is dismissed.