WHITE et al. v. BRUCE, Judge, 109 F. 355

McCORMICK, Circuit Judge, after stating the case as above, delivered the opinion of the court. The fact that the appellate court cannot entertain an appeal' or writ of error until the sanie has been duly allowed shows conclusively that the right to an appeal or writ of error is not an unqualified one. The power and duty to allow a writ of error oían appeal, duly applied for in a proper case, conclusively implies the power and duty to refuse such applications in some cases.

In the very nature of the case this must be so; otherwise, it would be in the power of the parties by successive applications to forge an endless chain of obstruction to the execution of any judgment. “An appeal will not be entertained by this court from a decree entered in the circuit court or other inferior court in exact accordance with our mandate upon a previous appeal.

Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. * * * The same rule applies to writs of error. i:' * The effort of the appellant was to open the case below-, and to obtain leave to file new pleadings, introducing new defenses. This he could not do. The rights of the parties in the subject-matter of the suit were finally determined upon 'the original appeal, and all that remained for the circuit court to do was to enter a decree in accordance with our instructions, and carry it into effect.” Stewart v. Salamon, 97 U. S. 361, 24 L.

Ed. 1044. “Instead of carrying our decree into execution'ourselves, we sent it below for that purpose. ':i * The order appealed from was in furtherance of our express directions, and may, with propriety, be considered part of our decree.” Humphrey v. Baker, 103 U. S. 736, 26 L. Ed. 456. “Apart from these considerations, howr ever, this is an appeal from a decree entered by the circuit court in conformity with the mandate from the circuit court of appeals for the Eighth circuit. That court took jurisdiction, passed upon the case, and determined by its judgment that the appeal had been properly taken.

If error was committed in so doing, it is not for the circuit court to pass upon that question. The circuit court could not do otherwise than carrysout the mandate from the court of appeals, and could not refuse to do so on the ground of want of jurisdiction in itself or in the appellate court. Skillern’s Ex’rs v. May’s Ex’rs, 6 Cranch, 267, 3 L. Ed. 220; In re Washington & G. R. Co., 140 U. S. 91, 11 Sup. Ct. 673, 35 L. Ed. 339; Gaines v. Rugg, 148 U. S. 228, 241, 13 Sup. Ct. 611, 37 L. Ed. 432.

And no rule is better settled than that an appeal from a decree entered by the court below in accordance with the mandate of the appellate court cannot be entertained. Stewart v. Salamon, 97 U. S. 361, 24 L. Ed. 1044; Humphrey v. Baker, 103 U. S. 736, 26 L. Ed. 456; Railway Co. v. Anderson, 149 U. S. 237, 13 Sup. Ct. 843, 37 L. Ed. 717. If the circuit court of appeals erred, or if, for any reason, its judgment could be held void, the appropriate remedy lay in a certiorari from this court to that court. American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 13 Sup. Ct. 758, 37 L.

Ed. 486.” Smelting Co. v. Billings, 150 U. S. 37, 14 Sup. Ct. 4, 37 L. Ed. 986. “The circuit court was correct-in awarding' execution against the company under the mandate. The judgment was originally against the receiver, to be paid in due course out of the assets in his hands, but the receiver had been discharged, and the property restored to the company, and the company had been substituted as the party to> the writ of error here, and been made in all respects as liable to the defendant in error as if it had itself brought the writ.

The judgment was made final by the order of this court, and was not again subject to be reviewed by the court below in the exercise of its equitable powers or otherwise. * * * The circuit court properly attempted to exercise no discretion in the premises, but discharged its duty by carrying the mandate into effect according to its terms.

This court awarded execution against the company for the costs here, but it was for the circuit court to award execution for the amount of the judgment, as- it was directed to do, and as it did, and interest was properly included at the rate which obtained under the law of Texas at the time judgment was rendered, the change in the law in that respect operating only prospectively.

Inasmuch as its action conformed to the mandate, and there were no proceedings subsequent thereto not settled by the terms of the mandate itself, the case falls within the rule often heretofore laid down, and a second writ of error cannot be maintained.” Railway Co. v. Anderson, 149 U. S. 241, 242, 13 Sup. Ct. 843, 37 L. Ed. 717. We had occasion to discuss at some length the questions we are now considering in Gordon v. Bank, 6 C. C. A. 125, 56 Fed. 790, 796.

That case arose in the same-district in the state of Alabama from which this case comes, and much that we then said we deem pertinent to- our present argument. In that state it is provided by statute, in cases for the recovery of money •only, that, “if the supreme court affirms the judgment of the court below, it must render judgment against all or any of the obligors in the bond for the amount of the judgment affirmed, ten per cent. damages thereon, and the costs of the supreme court.” Referring to this provision of the state statute, we said in Gordon v.

Bank: “The statute of Alabama cannot by its own force control the practice of the supreme court or other courts of the United States, and It is not the practice of the supreme court of the United States, on affirmance of the judgment of a subordinate court, to make the judgment of that court the judgment of the supreme court, to be directly executed as such.

In lieu thereof, its mandate issues to the court a qua commanding ‘that such execution and proceedings he had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said writ of error notwithstanding.’ ” We did not undertake in that decision to settle the practice, and our language in the opinion says no more, and implies no more, than that the proceeding which had been had therein was such as gave the defendants in the judgment no ground of complaint.

In the case we are now considering the language of the mandate sent down is identical with that just quoted from the practice of the supreme court, and the judgment of this court on which that mandate issued is expressed in this language: “It is now here ordered and adjudged by this court that the judgment of the said circuit court in this cause be, and the same is hereby, affirmed. It is further ordered and adjudged that the plaintiffs in error, Charles M.

McGhee and Henry Fink, receivers of the Memphis & Charleston Railroad Company, and the sureties on the writ of error bond herein, Addison White and Milton Humes, be condemned to pay the costs of this cause in this court, for which execution may be issued out of said circuit court.” The return of the respondent shows that, after the mandate of this court had been filed in the circuit court, the plaintiff in the judgment which had been affirmed applied to the circuit court to order an execution, in manner and form as required by law, to issue against the property, goods, and effects of the defendants, and Milton Humes and Addison White, their sureties on the writ of error bond, for the amount of the judgment, namely, $2,625, rendered in that court on the 13th day of April, 1898, with interest thereon at 8 per cent, per annum, together with the costs of the circuit court and the costs of the circuit court of appeals, and also all of the damages allowed upon said judgment rendered in the circuit court under the laws of the state of Alabama, to wit, 10 per cent, on the amount of said judgment; and that notice of this application be given to the defendants, and Milton Humes and Addison White, sureties on the writ of error bond, to show cause, if any they have, why the prayer of this application should not he granted.

Upon which application the court ordered and adjudged “that said mandate, together with this order, be spread upon the minutes of this court, and be made a part of the jecoyd in this cause; and it is further considered, ordered, and adjudged that the plaintiff, A. J. McCarley, as administrator of Zuma Allred, deceased, have and recover of the defendants, Charles M.

McGhee and Henry Fink, as receivers of the Memphis & Charleston Railroad Company, and Milton Humes and Addison White, the sureties on their writ of error bond, the sum of twenty-eight hundred dollars, being the amount of the penalty named in said writ of error bond, and covering the judgment rendered by this court on the 13 th day of April, 1898, for two thousand six hundred and twenty-five dollars, and one hundred and seventy-five dollars interest thereon, the excess of interest and costs upon said judgment against said receivers not to be satisfied by the collection on the execution which is hereby ordered against the sureties on said writ of error bond.” This order is, in substance, a strict compliance with our mandate, and the matters sought to be interposed by the sureties on the writ of error bond of the petitioners here presented no cause which the circuit court could entertain and make the ground for refusing the application of the plaintiff in the judgment for process, or for imposing any qualification thereon other than the one it did impose, that the collection on the process against the sureties should not exceed the amount of the penalty in the bond on which they bound themselves.

We are not called upon in this case to suggest what cause, if any, the sureties might have shown in answer to the notice served on them in this case that should have prevailed to prevent the issuance of final process against them. We need say no more, and do say no more, than that the cause they offered was not good. The prayer of the petitioners for a mandamus should not be granted. The prayer of the respondent that he may be hence dismissed, with his reasonable costs should be granted.

We express no views as to whether an allowance for the services of an attorney of a respondent in such cases as this may or may not, according to the facts and the given case, be adjudged as part of the costs against his adversary. We decline to make such allowance in this case.