Hinckley v. Morton
Citation | 26 L.Ed. 458,103 U.S. 764 |
Parties | HINCKLEY v. MORTON |
Decision Date | 01 October 1880 |
Court | United States Supreme Court |
MOTION to dismiss an appeal from the Circuit Court of the United States for the Southern District of Illinois, with which is united a motion to affirm.
Mr. R. Biddle Roberts in support of the motions.
Mr. Leonard Swett and Mr. Philip Phillips, contra.
Our jurisdiction of this case is clear. The appeal is not from the decree entered on our mandate at the last term in Hinckley v. Railroad Company, 100 U. S. 153. On the contrary, that decree has been satisfied by an actual payment of the amount found due. The case does not, therefore, come within the rule laid down in Stewart v. Salamon (97 id. 361), where we held that an appeal would not be entertained from a decree rendered by the court below in accordance with our mandate on a previous appeal. The record now presented shows that after our decision at the last term, in which, among other things, Hinckley, the appellant, was allowed $10,000 for his services as receiver from the time of his appointment in the Kelly suit, he went into the State court and had that suit reinstated. He then applied to that court to fix his compensation as receiver. That was done, and resulted in an allowance to him of something more than $24,000. As soon as that order in his favor was made, he filed an intervening petition in the Circuit Court, asking that the amount so allowed him might be paid out of the fund in the Circuit Court belonging to the Morton suit. This was refused, and from the order to that effect, which was a final decree on the intervening petition, this appeal was taken. Second appeals have always been allowed to bring up proceedings subsequent to the mandate and not settled by the terms of the mandate itself. Supervisors v. Kennicott, 94 id. 498; Tyler v. Magwire, 17 Wall. 53 . This case comes clearly within that rule, and the motion to dismiss is, therefore, denied.
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