McCourt v. Singers-Bigger

• Decision Date: 24 September 1906
• Docket Number: 2,491.
• Citation: 150 F. 102
• Parties: McCOURT et al. v. SINGERS-BIGGER.
• Court: U.S. Court of Appeals — Eighth Circuit

150 F. 102

McCOURT et al. v. SINGERS-BIGGER.

No. 2,491.

United States Court of Appeals, Eighth Circuit.

September 24, 1906

(Syllabus by the Court.)

No right of appeal exists from a decree entered in an inferior court in exact accordance with the mandate of the appellate court; but a decree which adjudges subsequent issues that were not determined by the earlier decree, which was the basis of the mandate, is subject to review by appeal.

An appeal is a matter of right, and its allowance does not rest in the discretion of court or judge. It may be denied only in cases in which no appeal whatever is permitted by the law.

A supersedeas is a matter of right, and its allowance does not rest in the discretion of court or judge. It is the effect as a matter of law, of a compliance by the appellant with the provisions of the acts of Congress. The only function of the judge is to determine whether the security proffered for 'damages and costs' is good and sufficient. Sections 1000, 1007, 1012, Rev. St. (U.S. Comp. St. 1901, pp. 712 714, 716).

The taking of security for 'damages and costs' on an appeal from a second decree, which reforms the grant of relief, and determines issues not adjudicated by the former decree, upon which a mandate of affirmance issued, supersedes the later decree, and deprives the inferior court of the power during the pendency of the appeal to execute a part of it, which in its opinion is but a repetition of the former adjudication.

Thomas Bryant & Malburn, for appellants.

T. J. O'Donnell, for appellee.

Before SANBORN and VAN DEVANTER, Circuit Judges.

SANBORN Circuit Judge.

A petition for a writ to forbid the court below from executing an order that $24,931 of the moneys deposited in that court be paid to the complainant below, the appellee here, has been presented, and is urged upon the ground that an appeal has been taken from the decree upon which this order is based and that the decree has been superseded by the filing of an approved bond for that purpose. The controversy arises in this way: The complainant, the owner of one-half of the stock of the Colorado Amusement Company, a corporation, exhibited her bill against other stockholders of that corporation, the Consolidated Amusement Company, another corporation, Peter McCourt, the manager thereof, and others, to secure a transfer from the Consolidated Company to the Colorado Company of certain leases of theaters and of the profits derived therefrom. During the litigation some of the moneys derived from these profits were deposited in the court below, and these moneys are the subject of the present litigation. On June 13, 1905, a final decree was rendered in this suit, to the effect that on March 7, 1903, there was due and that there should be paid to the defendant, the Colorado Amusement Company by the defendants Peter McCourt, Emma F. McCourt, the Consolidated Amusement Company, and F. C. Young, $52,788.44, and interest from June 13, 1905, and the further sum of $2,972.22, and interest from the same date, on account of what was called the Silver Circuit; that the Colorado Amusement Company should pay to the complainant for her counsel fees and costs $9,560.19, and that certain other defendants should pay other costs of this suit. An appeal to this court was taken from this decree by the defendants. It was affirmed, and a mandate was remitted to the court below to execute it. Thereupon the complainant filed a petition in the Circuit Court, wherein she prayed that the decree thus affirmed be reformed and amended so that it should adjudge: (1) The actual amount which the Colorado Amusement Company was entitled to receive from the profits derived from the leases of the theaters up to September 4, 1904, as against Emma F. McCourt and Peter McCourt, and the share of all the profits to which the company was entitled, both of those adjudged in the former decree and of those subsequently claimed, to which the complainant was entitled as the owner of one-half of the capital stock of the Colorado Company; (2) the amount of additional counsel fees which should be allowed to the complainant; and (3) certain claims to interest and costs presented in this new petition. The court referred the issues raised by this petition to a master, and in due time his report, the evidence upon which it was based, and the exceptions of the parties, were filed. Upon consideration, the court thereupon rendered another decree, whereby it determined the amounts which the Colorado Amusement Company was entitled to receive as against Emma F. McCourt and Peter McCourt on account of profits accruing between March 7, 1903, the date to which the accounting extended under the first decree, and September 20, 1904; the share of the profits due to the Colorado Company on account of the profits adjudged to that company under the first, as well as under the second, decree to which the complainant was entitled; the questions relative to the additional counsel fees, costs, and interest presented by the petition filed subsequent to the mandate, recited that $48,696.40 had been paid into court; reformed and imbodied in this second decree the unexecuted relief granted under the former decree, as well as the additional relief given by this decree, and adjudged that $5,000 additional fees should be paid to counsel for complainant; that certain costs specified and the sum of $34,857.31 should be paid to the complainant or her counsel out of the fund on deposit with the court; and that the remainder of that fund should be paid to the defendant Emma F. McCourt. From this decree the...