Hawkins v. Cleveland, C., C. & St. L. Ry. Co.
| Decision Date | 17 January 1900 |
| Docket Number | 456. |
| Citation | 99 F. 322 |
| Parties | HAWKINS v. CLEVELAND, C., C. & ST. L. RY. CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Leonard J. Hackney, for the motion.
John W Kern, opposed.
Before WOODS and JENKINS, District Judges.
The opinion of this court reversing the decree of the circuit court in this case was handed down at the October session 1898. Hawkins v. Railway Co., 60 U.S.App. 561, 32 C.C.A. 198, 89 F. 266. The appellee now presents a 'Motion to modify the mandate,' but, instead of a direct and specific statement of the modification desired beings by saying, 'The appellee, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, respectfully moves the modification of the mandate in the above entitled cause, and in support thereof, gives the court to know,' etc. This is followed by a lengthy statement, from which we are able to deduce an intention to move that the mandate be 'so modified as to direct the lower court to permit further pleading,' as proposed in that court. There is also a suggestion that the opinion of this court be made more specific upon the question whether the claim of the appellee as a general creditor is to be limited to the sum of $9,000, or whether further proof on that subject may be heard. It is stated in the motion that, after the decision of this court had been certified down, the appellant moved for a provision in the decree, to be entered in obedience to the mandate, to the effect that the appellee should share in the assets to be distributed only as a general creditor with a claim for $9,000, and no more; that pending that motion the appellee gave notice of its motion for leave to amend its supplemental petition or bill by adding thereto certain averments of facts stated; and that thereupon the presiding judge, expressing his belief that amendments to the petition and a further hearing without the direction of this court would not be in accordance with the mandate as sent down, deferred action upon either of the motions so presented, in order to enable the appellee to seek from this court a modification of the mandate. The mandate was in the customary form, commanding 'that such further proceedings be had in said cause as are not inconsistent with the opinion of this court, as, according to right and justice and the laws of the United States, ought to be had.'
No proposition to modify an opinion of this court can be entertained after the time allowed for a petition for a rehearing, or, at furthest, after the term at which it was handed down, if the time allowed for a petition for a rehearing had passed at the expiration of the term. If there arises dispute over the proper interpretation or application of an opinion, the remedy of the complaining party must be by mandamus or by a second appeal. Metcalf v. City of Watertown, 34 U.S.App., 16 C.C.A. 37, 68 F. 859.
In respect to the motion of the appellee for leave to amend...
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