Metcalf v. City of Watertown

• Decision Date: 10 July 1895
• Docket Number: 233.
• Citation: 68 F. 859
• Parties: METCALF v. CITY OF WATERTOWN.
• Court: U.S. Court of Appeals — Seventh Circuit

68 F. 859

METCALF v. CITY OF WATERTOWN.

No. 233.

United States Court of Appeals, Seventh Circuit.

July 10, 1895

Charles E. Monroe and F. C. Winkler, for plaintiff in error.

Harlow Pease, for defendant in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

The plaintiff in error brought this action in June, 1883, against the appellee, the city of Watertown, Wis., to recover the amount due on a judgment rendered against that city in the circuit court of the United States for the district of Wisconsin on the 8th day of May, 1866, in favor of Pitkin C Wright for the sum, with costs, of $10,207.83, of which judgment the appellant claimed by means of certain assignments to have become the owner. The amended declaration contained the necessary averments concerning the citizenship of the parties and of the successive owners of the judgment to give the court jurisdiction. See Metcalf v Watertown, 128 U.S. 586, 9 Sup.Ct. 173. The city answered, denying the complainant's ownership of the judgment, and asserting the 10 years' statute of limitation; and, issue having been joined, and a jury waived by written stipulation, there was a trial by the court, which on the 2d day of August, 1889, made and filed a special finding and conclusions of law. The facts were found in full conformity with the averments of the declaration, including the statement of the recovery of judgment by Wright, as alleged, 'against the said city of Watertown, upon the 8th day of May, A.D. 1866, for the sum of ten thousand one hundred and fifty dollars and forty-six cents ($10,150.46) damages, together with the sum of fifty-seven dollars and forty cents ($57.40) costs and disbursements of the action amounting in all to the sum of ten thousand two hundred and seven dollars and eighty-six cents ($10,207.86), in an action at law upon contract,' with the added statement that the 'action was commenced on the 29th day of June, 1883, and not before, and was not commenced within ten years from the time the cause of action herein accrued. ' The conclusions of law stated were, in substance, that the cause of action, not having accrued within 10 years before suit was barred by the statute of limitation, and the defendant entitled to judgment. Accordingly, on the same day, judgment was given, which afterwards, upon writ of error, the supreme court reversed, holding that the 10-years bar constituted no defense, and ordering that the cause be remanded, 'with a direction to enter judgment for the plaintiff on the finding. ' Metcalf v. City of Watertown, 153 U.S. 671, 14 Sup.Ct. 947. The opinion and formal mandate, containing the customary command, 'You, therefore, are hereby commanded that such execution and further proceedings be had in said cause, in conformity with the opinion and judgment of this court, as, according to right and justice, and the laws of the United States, ought to be had, the said writ of error notwithstanding,' were filed in the circuit court June 19, 1894; and a motion then and there made for judgment on the mandate was argued by counsel, and submitted, but not determined until August 25, 1894, when, after reversing its former judgment, the court gave the plaintiff judgment for the sum of $10,207.86, stated to be 'the amount claimed in the complaint herein,' with interest at 7 per cent, from May 8, 1866, to April 1, 1893, and at the rate of 6 per cent. from that time, amounting to $20,074.68, which, with other items of costs, amounting to $148.29, made the aggregate sum of $32,430.83, for which judgment was entered. Afterwards, at the same term of court, on the 17th day of September, on motion of the plaintiff, the record in respect to the hearing of the motion for judgment on the mandate was amended, to show that on the 19th day of June, 1894, the plaintiff's attorney presented to the court a draft of judgment proposed for entry, which is set out in full, and which, if granted, would have given the complainant $35,685.73, exclusive of the said sum of $148.29 costs, obtained by computing interest on the original judgment to the 2d day of August, 1889, when the plaintiff was erroneously denied judgment for the amount then due, namely, $26,809.23, and computing the interest on that sum, to the date of the judgment; that the attorneys for the defendant objected to the proposed entry, and the court, having taken the matter under advisement, afterwards denied the motion, and ordered that judgment be given as it was finally entered, 'to which orders the plaintiff excepted so far as they disallowed his claim for interest on the accumulated interest due on the 2d day of August, 1889.'

Though not suggested at the hearing, the question has arisen whether this case is properly here. Assuming that in the particular complained of the judgment of the circuit court is erroneous, is the remedy by writ of error, or by an application to the supreme court for a mandamus to compel the entry of a proper judgment? There are many cases in which the supreme court has entertained and recognized as proper appeals and writs of error prosecuted for the purpose of correcting supposed errors in carrying into effect its mandates in prior appeals. We cite: Himely v. Rose, 5 Cranch, 313; Browder v. McArthur, 7 Wheat. 58; The Santa Maria, 10 Wheat. 431, 442; Sibbald v. U.S., 12 Pet. 488, 491; Story v. Livingston, 13 Pet. 359; West v. Brashear, 14 Pet. 51; Mitchel v. U.S. 15 Pet. 52; U.S. v. Fossatt, 21 How. 446; Railroad Co. v. Soutter, 2 Wall. 510; Ex parte Morris, 9 Wall. 605; Supervisors v. Kennicott, 94 U.S. 498; The Lady Pike, 96 U.S. 461; Stewart v. Salamon, 97 U.S. 361; Hinckley v. Morton, 103 U.S. 764; Ames v. Quimby, 106 U.S. 342, 1 Sup.Ct. 116; Clark v. Keith, 106 U.S. 464, 1 Sup.Ct. 568; Chaffin v. Taylor, 116 U.S. 567, 6 Sup.Ct. 518; Tyler v. Magwire, 17 Wall. 253, 290. In the case of The Lady Pike the opening sentence of the opinion is:

'Second appeals will lie in certain cases where it is alleged that the mandate of the appellate court has not been properly executed.'

In Stewart v. Salamon it is said:

'An appeal will not be entertained by this court from a decree entered in the circuit of other inferior court in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and, if it conforms to the mandate, dismiss the case with costs. If it does not, the case will be remanded, with appropriate directions for the correction of the error. The same rule applied to writs of error. This is not intended to interfere with any remedy the parties may have by mandamus.'

See, also, the dissenting opinion in that case. In Hinckley v. Morton it is said:

'Second appeals have always been allowed to bring up proceedings subsequent to the mandate, but not settled by the terms of the mandate itself.'

In Ex parte French, 91 U.S. 423, the supreme court had reversed a judgment for the defendant upon a special finding of facts which did not cover all the issued, 'with instructions to proceed in conformity with the opinion'; and, upon the filing of the mandate in the court below, the case was set down for a new trial, whereupon the plaintiff applied to the supreme court for a mandamus directing judgment in his favor upon the finding. This the court denied, holding that the circuit court was precluded by the mandate only from adjudging in favor of the defendant upon the special facts found, and that 'in all other respects' it was 'at liberty to proceed in such manner as, according to its judgment, justice may require.' In Groves v Sentell, 13 C.C.A. 386, 66 F. 179, the circuit court of appeals for the Fifth circuit, instead of dismissing the appeal for lack of...