Baltimore Building & Loan Ass'n v. Alderson

• Decision Date: 06 February 1900
• Docket Number: 313.
• Citation: 99 F. 489
• Parties: BALTIMORE BUILDING & LOAN ASS'N et al. v. ALDERSON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

99 F. 489

BALTIMORE BUILDING & LOAN ASS'N et al. v. ALDERSON et al.

No. 313.

United States Court of Appeals, Fourth Circuit.

February 6, 1900

J. G McCluer and Fielder C. Slingluff (C. D. Forrer, on the brief), for appellants.

W. P Hubbard, for appellees.

Before SIMONTON, Circuit Judge, and PAUL and BRAWLEY, District Judges.

SIMONTON Circuit Judge.

This case comes up on appeal from a decree of the circuit court of the United States for the district of West Virginia. One Joseph C. Alderson, a citizen of the state of Maryland, filed his bill of complaint in the circuit court of the United States for the district of West Virginia against the Loch Lynn Heights Hotel Company, a corporation of the state of West Virginia, and certain other parties, citizens and residents of the state of Maryland. Upon the filing of that bill the property of the defendant corporation was put into the hands of a receiver who took charge thereof. In the progress of the cause, proceedings were had therein whereby, among other things, realty of the corporation was sold by Sommerville, receiver, under the order of the court. Fielder C. Slingluff became the purchaser of certain parcels of the real estate of the insolvent corporation. Sommerville, the receiver, upon his appointment as such, was required to give bond, with surety. He did this, and gave as his surety D. H. Taylor. The sale to Slingluff was set aside, another sale was ordered, and Sommerville, receiver, was ordered to give an additional bond of $8,000. This he did, with N. E. Whitaker as surety. Another sale having taken place, Slingluff again became the purchaser in the sum of $16,610, and paid on his purchase $5,536.66. This money was paid to the receiver. The receiver made his report of sales, and he thereupon ordered to pay this sum of $5,536.66, and a further sum in his hands from other sales,-- $116.52,-- into the registry of the court. The receiver did not do this, but embezzled the money. Thereupon his sureties paid the money for him, and it is in the registry of the court. In the final decree of the circuit court this fact is distinctly stated, and the money is said to be in the hands of the clerk of the court to the credit of the cause. Exceptions having been taken to this final decree, and an appeal having been allowed to this court, the exceptions were sustained, and the decree of the circuit court was reversed. 90 F. 142. The mandate of this court, sent down after the hearing, recites in full the circuit decree, including the statement that the cash portion of the purchase money paid by Slingluff was in the registry of the court, to wit, $5,536.66. The mandate then goes on:

'And whereas, in the term of May, in the year of our Lord one thousand eight hundred and ninety-eight, the said cause came on to be heard before the United States circuit court of appeals for the Fourth circuit, on the transcript of the record, and war argued by counsel, on consideration whereof it is now ordered, adjudged, and decreed by this court that the decrees of the said circuit court appealed from in this cause be, and the same are hereby, reversed, and this cause is remanded to the circuit court of the United States for the district of West Virginia at Parkersburg, with instructions to vacate the order ratifying the sales made by the receiver, and the order distributing the purchase money, and that it direct that the payments made by the purchasers be returned to them, and that the decrees for sale be set aside, and the bill dismissed; the costs to be paid by the appellee. It is further ordered that the mandate of this court issue after the expiration of twenty days from the date hereof.'

When the case was called in the circuit court, the mandate having been entered, N. E. Whitaker and D. H. Taylor, sureties of Sommerville, receiver, intervened by petition, praying that the money paid by them into the registry be returned to them. The gravamen of the petition is that this court had reversed altogether the decree of the circuit court below, holding that that court had no jurisdiction; that, therefore, all of its acts were void, the appointment of the receiver was void, and his bond a nullity; that there was no obligation on the part of the sureties to pay this money, and its payment into the hands of the clerk did not deprive them of their title thereto. The circuit court granted the prayer of the petitioners in these words: 'It appearing to the court that of the money in the registry of the court to the credit of this cause the sum of $5,569.18 was not paid into the registry by the receiver in this cause, whose action in making the sale of the property, as well as receiving payment therefor, is held to be void, but was paid into such registry, $4,455.34 thereof by Nelson E. Whitaker and $1,113.84 by D. H. Taylor, under a void order of the court, such payment having been made as is set forth in the respective petitions aforesaid of said Whitaker and Taylor, and that it is but just that the money paid by each of them should be returned to him, it is therefore ordered, adjudged, and decreed that of the money now in the registry of this court to the credit of this cause $4,455.34 be repaid and returned by the registrar to Nelson E. Whitaker, and $1,113.84 be repaid and returned to said D. H. Taylor by the registrar.'

To this decree a petition for leave to appeal was presented and allowed upon the exceptions, and the cause is here for adjudication. The grounds of exception are that the circuit court erred in not obeying the mandate of this court in ordering the return of the money paid by Slingluff, then in the registry of this court in ordering the return of the money paid by Slingluff, then in the registry of this court, and that the circuit court erred in that it ordered the return of this money to the sureties.

As to the mandate. The mandate of this court recited in full the decree of the court below. That decree recited, among other things: 'That the said Slingluff paid to the said receiver the sum of $5,536.66 in cash, and delivered to said receiver his two notes for $5,536.66, dated 22d June, 1897, and payable, respectively, in six and twelve months, with interest, and the said money, with the sum of $116.52, which remained in said receiver's hands from other sources, having been paid into the registry of this court, and being now in the hands of L. B. Dellicker, clerk of this court. ' The mandate, as has been stated, after reversing the decrees of the court below, remands the case, with instructions to vacate the order ratifying the sales made by the receiver and the order distributing the purchase money, and 'that it direct that the payments made by the purchasers be returned to them, and that the decrees for sale be set aside, and the bill dismissed. ' 'It is well settled,' says the supreme court in Re Blake, 20 Sup.Ct. 42, Adv.S.U.S. 42, 44 L.Ed.-- (Nov. 13, 1899), 'that when the mandate leaves nothing to the judgment of the court below, and that court mistakes or misconstrues the decree or judgment of this court, and does not give full effect to the mandate, its action may be controlled either upon a new appeal or writ of error, if involving a sufficient amount, or by a mandamus to execute the mandate of this court,'-- and cases cited.

In the case In re Sanford Fork & Tool Co., 160 U.S. 255, 16 Sup.Ct. 293, 40 L.Ed. 416, the court says:

'When a case has been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court and disposed of by the decree is considered as finally settled. The circuit court is bound by the decree as the law of the case, and must carry it into execution by its mandate. That court cannot vary it, or examine it for any other purpose than execution, or give any other or further relief, or review it, even for apparent error upon any matter decided on appeal, or intermeddle with it further than to settle so much as has been remanded.'

See, also, In re Washington & G.R. Co., 140 U.S. 91, 11 Sup.Ct. 673, 35 L.Ed. 339.

Such is the general rule. But it must be observed that the question which came before the circuit court had never been presented to this court, and, in the nature of things, could not have been presented to it at the former hearing.

The petitioners below affirm that the money in the hands of the clerk, in the registry of the court, referred to in the decree below, was not put there by the receiver as part of the proceeds of sales; that it was, in fact, paid in by them under the supposition that they were sureties for the said receiver; that, inasmuch as all the orders of the circuit court have been reversed, including that appointing the receiver, the bond given by them as surety for him, supposing him to be a receiver, is null and void. Under these circumstances they ask restitution of this money. Notwithstanding the strong language used by the supreme court in the cases cited, it would seem that under some circumstances a discretion exists in the circuit court receiving the mandate. 'This court,' says Mr. Justice Woo...