FOURNIQUET V. PERKINS, 57 U. S. 82 (1853)

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U.S. Supreme Court

Fourniquet v. Perkins, 57 U.S. 16 How. 82 82 (1853)

Fourniquet v. Perkins

57 U.S. (16 How.) 82


Where a case in equity was referred to a master, which came again before the court upon exceptions to the master's report, the court had a right to change its opinion from that which it had expressed upon the interlocutory order and to dismiss the bill. All previous interlocutory orders were open for revision.

The decree of dismissal was right in itself, because it conformed to a decision of this Court in a branch of the same case, which decision was given in the interval between the interlocutory order and final decree of the circuit court.

The controversy between the parties had been at several different times, in various shapes before this Court, as will be seen by reference to 47 U. S. 6 How. 206, 48 U. S. 7 How. 160, and 55 U. S. 14 How. 313.

The case in 6 Howard was this:

The circuit court had decreed, on the 12th of April, 1847, that a community of acquests and gains had existed between Perkins and wife, during the marriage, and that the present appellants, representing Mrs. Perkins, were entitled to an account. Accordingly, the matter was referred to a master to ascertain the landed property, and to divide it and report an account. This was held by this Court to be an interlocutory order only, and not a final decree, and the appeal was dismissed. 47 U. S. 6 How. 208. The mandate sent from this Court, after reciting the decree or order appealed from, and the reference to a master, concluded thus:

"You therefore are hereby commanded that such further proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said appeal notwithstanding."

Under this mandate, the master took up the reference and made a report awarding a large sum of money and a large amount of land to Fourniquet and wife and Ewing and wife. Both parties filed exceptions to the report. These exceptions were before the court, upon argument, in February and March, 1852.

In the meantime, viz., at January term, 1849, the case of Fourniquet v. Perkins was decided by this Court as reported in 48 U. S. 7 How. 160. The circuit court appeared to consider this case as deciding the points involved in a different way from that in which it had itself decided them when referring the case to a master to state an account. Upon hearing the exceptions, it therefore reversed the former decree and dismissed the bill.

The complainants appealed to this Court.

Page 57 U. S. 83

It may be proper to mention that whilst this appeal was pending, another branch of the case reached this Court, which is reported in 55 U. S. 14 How. 313.

Page 57 U. S. 85

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