MERRILL v. NATIONAL BANK OF JACKSONVILLE, 78 F. 208

PARDEE, Circuit Judge. This case was before this court at tbe last term, and was then beard and determined upon its merits. 21 C. C. A. 282, 75 Fed. 148. In tbe decree then rendered we reversed tbe former decree of tbe circuit court, and remanded tbe cause, with instructions to enter a decree in accordance with tbe views expressed in tbe opinion of tbe court, in which opinion tbe decree to be entered was specifically outlined and. determined. On entering tbe mandate in the circuit court a decree in exact accordance with our mandate was entered, whereupon T. B. Merrill, receiver, sued out the present appeal.

The appellee has moved to dismiss the appeal, on tbe ground that no appeal lies from a decree entered in the circuit court in accordance with tbe mandate of this court; and this motion should be granted. In Stewart v. Salamon, 97 U. S. 361, it was expressly decided that an appeal from tbe decree which tbe circuit court passed in accordance.with tbe mandate of tbe supreme court upon a previous appeal will, upon tbe motion of tbe appellee, be dismissed, with costs. In Humphrey v. Baker, 103 U. S. 736, tbe precise question was again decided, and in the same way. Stewart v.

Salamon, supra, has been continuously approved. Mackall v. Richards, 116 U. S. 45, 6 Sup. Ct. 234; Gaines v. Rugg, 148 U. S. 228, 242, 13 Sup. Ct. 611; Railway Co. v. Anderson, 149 U. S. 237, 242, 13 Sup. Ct. 843; Smelting Co. v. Billings, 150 U. S. 31, 37, 14 Sup. Ct. 4; In re Sanford Fork & Tool Co., 160 U. S. 247, 259, 16 Sup. Ct. 291.

In opposition to tbe motion to dismiss it- is urged that, under tbe act entitled “An act to establish circuit courts of appeals, and to define and regulate in certain, cases the jurisdiction of tbe courts of the United States, and for other purposes,” approved March 3, 1891, an appeal lies to tbe supreme court of the United States from tbe decision of this court, and therefore tbe present appeal should be beard. If we concede that such appeal lies, we see in it no reason to vary from tbe uniform practice established by tbe supreme court in regard to second appeals in tbe same case. Tbe appeal is dismissed.