Gibbons v. Brandt
| Citation | 181 F.2d 650 |
| Decision Date | 04 May 1950 |
| Docket Number | No. 10071.,10071. |
| Parties | GIBBONS v. BRANDT et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
John H. Gately, Joseph F. Burns, Chicago, Ill., for appellants.
David J. Kadyk, C. H. G. Heinfelden, Russell Greenacre, Bruce E. Brown, Chicago, Ill., Lord, Bissell & Kadyk, Chicago, Ill. and Martin, Ullmann & Brown, Chicago, Ill., of counsel, for appellee.
Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.
In an action predicated on the Illinois Liquor Control Act, Ill.Rev.Stat.1945, Chap. 43, Sec. 135, Mary Gibbons obtained a judgment against Jack Cannaven, who operated a tavern in a building located in Chicago which was owned by Hugo E. and Ruth E. Brandt. Subsequently, an equitable action was brought, also under the Illinois Liquor Control Act, to enforce the judgment thus obtained against certain real estate owned by Hugo E. and Ruth E. Brandt, to which action these parties were named as defendants. From a decree in favor of the plaintiff the defendants appealed. This court at first affirmed the decree but later, on petition for rehearing, reversed the judgment, "with directions to proceed in accord with the views here expressed." Gibbons v. Brandt et al., 7 Cir., 170 F.2d 385, 391. Thereupon, this court entered its mandate, with directions that the District Court proceed accordingly.
On May 9th, 1949, Hugo E. Brandt and Ruth E. Brandt (appellees in the instant appeal and hereinafter referred to as such) filed their petition in the District Court in which it was suggested that Mary Gibbons had been adjudicated to be mentally ill by an order of commitment of the Circuit Court of Cook County, Illinois, and suggested the appointment of a next friend to represent her with respect to further proceedings in the matter, whereupon the court entered an order appointing as her next friend John H. Gately, an attorney who had represented Mary Gibbons as plaintiff in the original action. The appellees also petitioned the District Court to vacate its former decree and dismiss the action in conformity with the opinion and mandate of this court.
Mary Gibbons by her next friend (appellant in the instant appeal and hereinafter referred to as such) on May 31, 1949 filed her answer and cross-petition, denying that appellees were entitled to a vacation of the decree and a dismissal of the action on grounds subsequently referred to. On June 10, 1949, appellees filed a petition asking that appellant's answer and cross-petition be stricken. On July 7, 1949, appellees again filed a motion to dismiss appellant's cross-petition and answer and for a decree in accordance with our mandate.
On October 19, 1949, the court entered an order dismissing appellant's cross-petition and answer and vacated its former decree, in accordance with the mandate of this court. In the same order appellant's cause of action was dismissed for want of equity, with prejudice, and it was ordered that the appellees recover from Mary Gibbons their costs in the amount of $645.50. It is from this order of October 19, 1949 that the appeal comes.
We need not stop to inquire whether there is any procedure or law which would authorize appellant to thwart the direction to the District Court as expressed in the mandate of this court. The general rule is that where the merits of a case have once been decided upon an appeal, the lower court is without jurisdiction in the absence of authority from the reviewing court, to do other than proceed in accordance with the direction contained in the mandate. In re Potts, 166 U.S. 263, 265, 267, 17 S.Ct. 520, 41 L.Ed. 994; In re Chicago, R. I. & P. Ry. Co. (Cheston et al. v. Igoe), 7 Cir., 162 F.2d 257, 258; Mays v. Burgess et al., 80 U.S.App.D.C. 236, 152 F. 2d 123, 124. And this court has held that where a decree is reversed upon appeal solely because of the trial court's error in applying the law to the facts as found, there is nothing for the trial court to do upon remand except to enter a judgment or decree for the party who prevailed upon the appeal. Swalley v. Addressograph-Multigraph Corp., 7 Cir., 168 F.2d 585, 586, certiorari denied 335 U.S. 911, 69 S.Ct. 481. These authorities and others to the same effect perhaps are sufficient to dispose of this appeal, but appellant alleges and asserts that the appellees perpetrated a fraud upon both the District and this court, which suggests the advisability of giving the appeal some further consideration.
We refer to the previous opinion of this court for facts and issues in the case. One of the defenses imposed...
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