
    John B. Evans v. Dunn & Witt.
    In an action brought for tbe settlement of a partnership, to which all the members of the firm were parties, and the pleadings made no issue as to the partnership property or the necessity of its sale, and tbe only issues made related to the state and subject-matter of the accounts between the parties, which issues were referred to a master for finding and report. Held, that a decree made on the hearing of exceptions to the master’s report, some of which were sustained and others overruled, confirming the report as thus modified, and finding the amount due from the firm to the parties respectively, and for the payment thereof ordering the property to be sold, is a final decree from which an appeal may be taken; and the overruling of a motion made at a subsequent term to open up such decree, is not the subject of appeal.
    Motion for leave to file petition in error to reverse the District Court of Hamilton county.
    Evans, Dunn & Witt were partners in the business of galvanizing iron under the name of Evans, Dunn & Co., and, for the purpose of carrying on the business, had acquired valuable real and personal property which belonged to the firm. The business proved unprofitable, and was abandoned by mutual consent in September, 1866. In June, 1870, Dunn & Witt filed their petition in the Court of Common Pleas against Evans, stating the facts, in reference to the state of the partnership accounts and property, as they claimed them to be, and praying that Evans may he compelled to account, and that the partnership property he sold and the proceeds divided, after payment of the firm debts, between the parties, according to their rights. Evans answered, setting up the facts as he claimed them to be, making no issue as to the partnership property still owned by the firm, but making issues as to the state of the partnership accounts, and avers that he has been and is anxious to have a fair settlement of the partnership accounts,, and expresses a willingness to have the partnership property sold. In April, 1871, the court made certain preliminary findings, and directed the mode of stating an account and the matters that should enter into it, and referred the cause to a master to take an account between the parties accordingly, with directions to reduce the testimony to writing, and return the same with his report; and that he report the balance due to or by each party, including interest. In May, 1874, the master filed his report, finding that there was due to Evans from the firm for advances $18,715.36, and to Dunn & Witt for advances $4,667.65. The master refused to allow interest, because neither party is entitled to it by law. Evans promptly excepted to the report on a number of grounds, amongst which is this: “ 8th. Because no interest is allowed to Evans for advances, moneys paid out, nor for moneys paid on a mortgage.” In August, 1874, the cause, came on for hearing on the exceptions, several of which, after careful examination, were sustained, and the report correspondingly modified, so that, by the decree, the court found the amount due from the firm to Evans for advances to be $14,528.16, and to Dunn & Witt for advances a balance of $2,951.76. The eighth exception above quoted was overruled, and the report, except as specially modified by the decree, was approved and confirmed by the court. The court found that to pay the sums thus found due from the firm, it was necessary to sell the partnership property, and a sale thereof was accordingly ordered.
    Evans excepted, and also gave notice of appeal; but the appeal was not perfected. In November, 1874, a sale of the. property for $11,706.37 was returned and confirmed, and, after paying costs, the balance, $11,083.08, was ordered to be paid to Evans.
    At the July term, 1875, Evans “ moved the court to set aside the decree heretofore made in August, 1874, so far as the court refused to allow interest to defendant Evans, on ad ranees made and on amount paid on mortgage, etc.” “ But the court held the decree entered in 1874 was a final decree, and not interlocutory, and refused to allow any interest as claimed.” The court then found that, after ex.hausting the proceeds of the property, there was still a balance due to Evans from Dunn & "Witt of $257.75, which it ordered to be paid in sixty days. Evans excepted, and also gave notice of appeal. The appeal was duly perfected, and at the October term, 1 855, of the District Court, the cause came on to be heard. Evans offered testimony to show the state of the accounts between the parties. The court held that the decree, on exceptions to the master’s account of August, 1874, was a final decree, from which an appeal could have been taken, and that the same was not opened by the appeal, and the court refused to hear the testimony offered, but rendered a judgment in favor of Evans against Dunn & Witt for $263.54. To this decision Evans excepted.
    Evans now moves the court for leave to file a petition in error to reverse the judgment of the District Court, be-cause:
    1. The court erred in refusing to permit the said testimony offered by said Evans to be read on the hearing of said cause.
    2. The court erred in deciding that the decision of the Court of Common Pleas rendered in August, 1874, was a final judgment.
    3. The court erred in refusing to permit the master’s report, as originally made, or as corrected by the court, to be re investigated on exceptions filed thereto in said District Court.
    
      Fox § Bird, for plaintiffs in error :
    I. We claim that the District Court erred in deciding that the decree on the exception to the master’s report was a final decree, from which an appeal might be taken. The statute allowing appeals (2 S. & C. 1157, see. 5) provides that appeals may be taken from all final judgments, orders or decrees in civil actions, and interlocutory orders dissolving injunctions, and the action so appealed shall be again tried, heard, and decided in the District Court in the same manner as though the said District Court had original jurisdiction.
    If the decree adjusting the accounts was final, then there1 are two final decrees which can not be. A final decree is-one which determines and disposes of the whole merits of' the case, reserving no further questions for future determination. "Where the further action of the court is necessary to give complete relief, contemplated by the court upon the merits, the decree is not final, but interlocutoi-y. Teaffv. Hewitt, 1 Ohio St. 520 ; Evans v. lies, 7 Ohio St. 235; Kelly v. Stansberry, 13 Ohio, 421; Cocke v. ’ Gilpin, 1 Rob. (Ya.) 20.
    A decree to be final must put an end to the particular suit. 3 Ohio, 544. A decree finding relief on account of usury to the amount of $949.70, and cause continued as to a further claim, is not a final decree from which an appeal lies. Brown v. Swan, 9 Peters, 2, 3; Weston v. City of Charleston, 2 lb. 449.
    To constitute a final decree, it must be such a decree as an execution can issue on it. Wilson v. Daniel, 3 Dallas, 407; 1 Cond. 186.
    A decree finds due complainant $1,500, and directs the respondent’s interest in land to be sold ; this is not a final decree. Hamilton v. Jefferson, 13 Ohio, 429.
    We claim, therefore, there was no final deci’ee in the case until the October term, 1875, when a decree was rendered against Dunn & Witt for the sum of $263.54. This decree determined the whole case, and was appealed from.
    II. What is the effect of an appeal?
    We claim it opens the whole case, and it shall, in the Appellate Court, in- the language of the statute, be “ again tried, heard, and decided in the District Court, in the same manner as though the said District Court had original jurisdiction.” In addition to this statute, we claim, by the well-settled decisions of this and other courts, such is the necessary effect of an appeal. The law recognizes the right of the party to appeal, and provides for the effect of the appeal. Bassett v. Daniels, 10 Ohio St. 620; Lawson v.. 
      Missel, 7 Ohio St. 132 ; Cox v. Cox, 19 Ohio St. 509; Warner v. Webster, 13 Ohio, 506; Matón v. Varnum, 10 Ohio St. 622; Buckingham v. McLean, 13 How. 150 ; Wooley v. State, 8 Ind, 377; Branch v. Dick, 14 Ohio St. 557; Watts v. Waddell, 6 Pet. 402; Champaign v. Norton, 1 Ohio, 270; Lawrence v. Bissel, 7 Ohio St. 135; Basey v. Gallager, 20 Wall. 680; 6 Cranch, 23 ; 1 J. J. Marsh. 510; Adams’ Eq. 377 (old ed.); Saratoga v. Bales of Cotton, 1 Wood, 79; Yeaton v. The United States, 5 Cranch, 283.
   Gilmore, J.

If the decree modifying and confirming the master’s report at the August term, 1874, of the Court of Common Pleas was a final decree, from which an appeal could have been, but was not taken, then the matters that were passed upon by the court at that time were not opened up by the appeal taken from the final order of the court, made at the July term, 1875, and the District Court did not err in refusing to permit the master’s report as originally made, or as corrected by the court, to be re-investigated on exceptions filed thereto in the District Court, or in refusing to hear testimony touching the matters contained in that report, and settled by the decree of August, 1874.

The case, therefore, turns upon the question raised by the second assignment of error: Did the District Court err in deciding that the decree of the Court of Common Pleas, rendered at the August term, 1874, was a final decree?

The fifth section of the statute allowing appeals (2 8. & C. 1157) provides “ that appeals may be taken from all final judgments, orders, or decrees in civil actions, in which the parties have not the right, by virtue of the laws of this state, to demand a trial by jury,” etc. This was an appeal-able case.

The distinction between a final and an interlocutory decree or order has been often drawn with more or less clearness'by eminent jurists; yet questions like the one in the present case are constantly arising from the want of observing the distinction between them. The difficulty does not lie in defining the distinctions and laying down the-rules for testing the nature of a decree or order, but in the . application of the rules to a given case.

As to final decrees :

In Cocke’s Adm’r v. Gilpin, 1 Robinson, 26, Baldwin, J., says: “ A decree is final when it either refuses or grants the redress sought by the party complaining.”

In Jaques v. The Trustees of the Methodist Episcopal Church, 17 Johnson, 548, the court says: “A final decree is that which is made when all the material facts in a cause have been ascertained, so as to enable the court of chancery to understand and decide on the merits of the ease.”

In Kelly v. Stanbery, 18 Ohio, 421, Read, J., says: “A decree is final which disposes of the whole merits of the cause, and leaves nothing for further consideration of the COUl’t.”

In Teaff v. Hewitt, 1 Ohio St. 520, Bartley, C.J., says: “ A final decree is one which determines and disposes of the whole.merits of the cause before the court, or a branch of the cause which is separate and distinct from the other parts of the case, reserving no further questions or directions for future determination; so that it will not be necessary to bring the cause again before the court for further decision.”

These definitions, or rather descriptions of a final decree, agree in the main idea, which is : That to be final, the decree must dispose of the merits of the whole cause, or com- . pletely and finally dispose of some branch or part of the ■cause which is separate and distinct from the other parts of the case.

As to interlocutory decrees :

In Kelly v. Stanbery, above cited, it is said: “ A decree is interlocutory which finds the general equities, and the cause is retained for reference, feigned issue, or consideration, to ascertain some matter of fact or law, when it again comes under consideration of the court for final disposition.”

In Teaff v. Hewitt, above cited, it is said: “ An interlocutory decree is one which leaves the equity of the case, or some material question connected with, it, for future determination.”

By the aid of these guides, I think, it can be made plain that the decree of August, 1874, was a final decree.

The case was one for settling and closing up an abandoned partnership business.

The extent and nature of the partnership property were admitted. All the parties desired that the partnership property should be sold in the proceeding. The only matter of controversy between the parties related to the state of the partnership accounts. About these there was a real controversy; in respect to all things else connected with the case, the action was adversary in form only.

In April, 1871, the court made certain preliminary findings as to the rights of the parties, and directed the manner of stating an account, and designated the matters that should enter into it, and referred the cause to a master to take and reduce the testimony to writing, and state an account between the parties, and make his report thereon. This was clearly an interlocutory order. It found the rights of the parties in a general way; directed the mode of ascertaining the facts in reference to the controverted matters, and referred the cause to a master for this purpose, preparatory to a final decree.

On the coming in of the master’s report, accompanied by all the testimony in the case, numerous exceptions, and among them the master’s refusal to allow interest on advances, were filed by Evans.

The testimony, master’s report, and the exceptions to it, under our practice, brought all controverted matters between the parties fully before the court. After a very full hearing on the whole merits of the case, the exceptions to' the master’s report were partly sustained, and the repoi't correspondingly modified; and the other exceptions, including the exception to the master’s refusal to allow interest - on advances, were overruled, and the report, as modified, was approved and confirmed; and the amount due from the firm to the parties respectively as thereby fixed were specially found and decreed ; to pay which the firm property was ordered to be sold. Manifestly this was a complete ■determination and disposition of the whole merits of the cause about which there was any controversy, and was therefore a final decree, from which an appeal might well have been taken. Kelly v. Stanbery, 18 Ohio, 422.

The order to sell the partnership property to pay the firm debts, was a matter to which all parties were consenting, and the result of the sale could in no manner affect the previous determination of the case upon its merits. The order to sell was simply an order in execution of the final decree, and the duties to be performed under it purely ministerial, except as to the distribution of the proceeds of sale, which followed as a matter of course, in accordance with the final decree, by order of the court at November term, 1874.

The motion made by Evans in the Court of Common Pleas, at the July term, 1875, in reference to the refusal of the master to allow him interest on his advances and the balance due to him, as found by the master, was, in effect, a motion for a new trial as to those particular matters. The very questions sought to be raised by the motion had been once before the court, and fully tried and determined. The 534th section of the code provides the grounds upon whieh a judgment or order may be modified, after the term at whieh it was made; and the record does not show that Evans, by his motion, brought himself within the provisions ■ of the section—the motion, as we understand it, being in the nature of an assignment of error in law.

But conceding the motion to have been within the spirit of the section, and that the court had power to modify the final decree, still, on the case made, the court, in its discretion, might properly refuse to grant the motion, and its refusal could not be assigned for error; nor did the motion and the ruling of the court upon it so form a part of the case or of the final order of distribution that an appeal from the latter order could bring the motion and the ruling of court upon it again before the district court for determ - ination; and the latter court, therefore, properly refused to hear testimony and determine the questions involved in the motion on appeal.

We find no errors on the record.

Motion overruled.

Welch, C. J., White, Rex, and McIlvaine, JJ., concurred.  