112 F.2d 387 (6th Cir. 1940), 8402, Home Indem. Co. of New York v. O'Brien

Docket Nº:8402.
Citation:112 F.2d 387
Party Name:HOME INDEMNITY CO. OF NEW YORK v. O'BRIEN, Atty. Gen. of Michigan.
Case Date:May 15, 1940
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 387

112 F.2d 387 (6th Cir. 1940)



O'BRIEN, Atty. Gen. of Michigan.

No. 8402.

United States Court of Appeals, Sixth Circuit.

May 15, 1940

Page 388

Clark C. Coulter, of Detroit, Mich., for appellant.

Thomas Read, Atty. Gen., of Michigan, Earl L. Burhans, of Paw Paw, Mich., and Stevens T. Mason, of Detroit, Mich., for appellee.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.


It appearing that the appellee had obtained a judgment in the District Court for the Eastern District of Michigan in the sum of $25,000, on a surety bond; that upon appeal to this court by the present appellant the judgment was affirmed in an opinion filed June 7, 1939, wherein it was indicated that the appellant might protect itself against claimants by paying the amount of the judgment into the registry of the court, 6 Cir., 104 F.2d 413; and

It further appearing that our mandate in pursuance of affirmance was filed in the District Court on June 11, 1939, and that in conformity therewith the appellant paid into the registry of the court the amount of the judgment, together with interest thereon from the date of its rendition; and

It further appearing that subsequently, on August 15, 1939, the District Judge entered an order correcting and amending the judgment by us affirmed, by adding thereto the words 'with interest thereon at 5% from July 14, 1935, the date of the institution of the suit, to February 11, 1937, the date of the judgment'.

Now, therefore, it is the view of this court that the District Judge was without power to alter a judgment affirmed by us and that it was his duty, upon the receipt of the mandate, to proceed with the execution of the judgment, and no more; that this limitation upon the authority of the District Judge to alter the judgment in defiance of the express command of the mandate, is established by a long line of federal cases, including In re Washington & G.R. Co., 140 U.S. 91, 11 S.Ct. 673, 35 L.Ed. 339; Kansas City S.R. Co. v. Guardian Trust Co., 281 U.S. 1, 50 S.Ct. 194, 74 L.Ed. 659; Harrison v. McPherson, 8 Cir., 226 F. 198; In re Sanford F. & T. Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414; Ex parte Union Steamboat Company, 178 U.S. 317, 20 S.Ct. 904, 44 L.Ed. 1084; and

It being further the view of this court that the rule established by the cited cases has not been modified...

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