John Perkins, Appellant v. Edward Fourniquet, and Harriet, His Wife

• Decision Date: 01 December 1852
• Citation: 55 U.S. 328,14 How. 328,14 L.Ed. 441
• Parties: JOHN PERKINS, APPELLANT, v. EDWARD P. FOURNIQUET, AND HARRIET, HIS WIFE
• Court: U.S. Supreme Court

55 U.S. 328

14 How. 328

14 L.Ed. 441

JOHN PERKINS, APPELLANT, v. EDWARD P. FOURNIQUET, AND HARRIET, HIS WIFE.

December Term, 1852

THIS was an appeal from the Circuit Court of the United States for the Southern District of Mississippi.

It is stated, in the report of the preceding case, that, at December term, 1851, a case of Fourniquet and wife, against Perkins, came up from Mississippi, and the decree of the Circuit Court was here affirmed by a divided court. It was, therefore, not reported.

The proceedings under the mandate, and the questions which arose thereon, are set forth in the following opinion of the court:

Mr. Chief Justice TANEY delivered the opinion of the court.

It appears, in this case, that on the 22d of May, 1849, the Circuit Court for the Southern District of Mississippi, passed a decree in favor of the appellees, against the appellant, directing

him to pay the sum of $16,496.61, within thirty days thereafter, with legal interest from the date of the said decree, or, in default thereof, the appellees to have execution against the appellant.

This decree was affirmed at the last term of this court, with costs and damages, at the rate of six per cent. per annum; and a mandate issued to the Circuit Court reciting the judgment of this court, and directing it to be carried into execution.

After this mandate was filed in the Circuit Court, the appellees obtained an execution against the appellant, by which the marshal was commanded to levy the amount of the original judgment in the Circuit Court, with the Mississippi interest of eight per cent., and damages at the rate of six per cent. in addition, making together, fourteen per cent., from the date of the original judgment, until paid.

The appellant insisted that, under the mandate, he was bound to pay nothing more than damages at the rate of six per cent. on the original decree, from the time it was rendered. And, acting upon this construction of the judgment of this court, and supposing himself chargeable with the six per cent. damages, until the decree was satisfied, he payed the marshal, on the 12th of May, 1852, the amount he supposed to be due, calculating the interest up to that time, and, by some error in the reckoning, he paid a small sum over. And, as the appellees still insisted upon levying the whole amount for which they had obtained process of execution, he moved the Circuit Court to refer it to a Commissioner, to report the amount due under the judgment of this court, and how much, if any, he had overpaid in his settlement with the marshal. It was admitted that the costs were all paid. The only controversy was about the interest and damages, as above stated.

The commissioner reported that, according to the basis of settlement claimed by the appellant, he had overpaid the amount due on the decree, $61.50; but that, according to the construction of the mandate insisted on by the appellees, there was still due to them a balance of $3,831.02.

Upon this report, the appellant moved the court to order satisfaction of the decree to be entered of record; or, to quash the execution then in the hands of the marshal, and order the clerk of the court to issue no further fi. fa. on the decree; and, also, for an order on the marshal, or the appellees, as might be proper to refund the money overpaid.

But the court overruled the motion, ordering, at the same time, that no further execution should issue, until the appellant had a reasonable time to present an appeal to this court. And this appeal was accordingly taken.

An objection has been made to the manner in which this case

has been brought before the court, and a motion made to dismiss, upon the ground...