Nashua & Lowell R. Corp. v. Boston & Lowell R. Corp.

• Decision Date: 01 February 1894
• Docket Number: 25.
• Citation: 61 F. 237
• Parties: NASHUA & LOWELL R. CORP. v. BOSTON & LOWELL R. CORP.
• Court: U.S. Court of Appeals — First Circuit

61 F. 237

NASHUA & LOWELL R. CORP. v. BOSTON & LOWELL R. CORP.

No. 25.

United States Court of Appeals, First Circuit.

February 1, 1894

Francis A. Brooks, for appellant.

Josiah H. Benton, Jr., for appellee.

Before PUTNAM, Circuit Judge, and WEBB and ALDRICH, District Judges.

PUTNAM Circuit Judge.

This cause comes into this court on an appeal by the Nashua &amp Lowell Railroad Corporation, taken April 29, 1892, with a citation returnable May 28, 1892. May 5, 1886, a decree had been entered in the circuit court dismissing the bill, from which an appeal was taken to the supreme court, and was there duly considered on the merits, and an opinion rendered, found in 136 U.S. 356, 10 Sup.Ct. 1004, closing as follows 'The decree of the court below will be reversed, and the cause remanded for further proceedings in accordance with this opinion ' The substance was that a portion of the claim made by the bill was disallowed and a portion of the claim made by the bill was disallowed and a portion allowed; but further details need not here be cited, as they fully appear in the opinion of the supreme court. The mandate of that court was issued May 26, 1890, and received and filed in the circuit court May 29, 1890, and it followed the concluding paragraph of the opinion already cited. Thereafterwards, July 21, 1891, the circuit court sent the case to a master by an order which in its preamble recited the mandate of the supreme court and referred to its opinion, and which directed the master 'to take and state the account to which the complainant is entitled, and as set forth in the preamble hereto.'

The parties appeared before the master, and the account was duly taken, showing the amount due stated in the final decree in the circuit court, which will be hereafter referred to. At this stage of the case the Nashua & Lowell Railroad Corporation claimed interest-- First, from the dates when the various amounts were received by the Boston & Lowell Railroad Corporation; second, from the date of the filing of the bill, April 17, 1880; and, third, from the date of the filing of the amended bill, September 15, 1883; none of which was allowed. Exceptions to the master's report were duly taken, and were disposed of in accordance with an opinion of the circuit court which had been filed February 14, 1891, as follows:

'In view of the nature of the contract between the plaintiff and defendant corporations, and of the decision of the supreme court upon appeal, and of the rules of law governing the allowance of interest, I think it would be inequitable to permit the plaintiff to recover interest upon the basis claimed. I am of the opinion, therefore, that the plaintiff is entitled to a decree for $26,124, with interest from the date of the mandate.'

A final decree was entered accordingly, from which appeal was seasonably taken, as already stated.

The bill was filed, not only against the Boston & Lowell Railroad Corporation, but also against Hocum Hosford and Charles E. A. Bartlett. The final decree takes no notice of respondents Hosford and Bartlett, and is technically defective in that respect. They were at the most mere stakeholders. The fund in controversy came into the hands of the Boston & Lowell Railroad Corporation before the filing of the bill. No party has pressed for relief against either Hosford or Bartlett, and the decree of the court below should be at least so far modified as to dismiss the bill as against them, without costs.

The only matter in controversy in this court, or substantially in controversy in the court below after the receipt of the mandate from the supreme court, has been the matter of interest, already referred to.

May 31, 1892, the Boston & Lowell Corporation filed in this court a motion to dismiss the appeal, for reasons therein stated, and which need not be set out here at length. When that motion came on for hearing, it also filed another motion to dismiss, the substance of which is stated in the opinion filed in this cause September 6, 1892, as follows:

'That the appeal was not from the decree of the circuit court, but from a part only of that decree; and that the transcript transmitted to this court was a copy of but a part of the record below.' 2 C.C.A. 542, 51 F. 930.

The opinion referred to said, touching that second motion, as follows:

'After one motion to dismiss had been filed and set down for hearing, the appellee had no right to file a second motion to dismiss without leave of the court, and such leave should not be granted upon formal grounds only. If the appeal is wholly insufficient to sustain the jurisdiction of this court, the court may, of its own motion, take notice of the insufficiency at the hearing on the merits. If the transcript of record is imperfect, the appellee might have suggested a diminution of the record, and asked for a certiorari. It would doubtless have been more regular for the appellant to file in this court a complete transcript, if not of the whole record of the circuit court, yet of so much thereof, at least, as set forth the entire opinion and mandate of the supreme court, and all the subsequent proceedings in the court below. But the imperfections of the transcript in this respect were not made a ground of the original motion to dismiss; nor does the supplemental motion point out what, if any, of the omitted parts are material. The whole opinion of the supreme court is published in the official reports, and there is no controversy as to its scope. A copy of an opinion of Colt, J., filed February 24, 1891 (omitted in the transcript), proceeding upon the same ground as his opinion after the return of the master's report, has been supplied by the appellant by direction of this court; and the appeal is from so much of the final decree as the appellant complains of. Under these circumstances, both motions to dismiss the appeal must be denied.' 2 C.C.A. 545, 51 F. 931.

Thereafterwards the merits of the appeal were fully argued, and certain ad interim and incidental motions and proceedings were had, which need not be recited here at length, but which resulted in elaborate and full rearguments of the various propositions touched on in the foregoing extracts from the opinion filed September 6, 1892. It will be noticed that this required a transcript of only the opinion and mandate of the supreme court, and the proceedings in the court below subsequent to the mandate. It called attention to the fact that the second motion to dismiss did not point out what, if any, of the omitted parts were material. It also stated that, if the transcript was imperfect, the appellee might have suggested a diminution of the record, and asked for a certiorari. Notwithstanding the full reargument of the points covered by these propositions, and the claim pressed on the court that, inasmuch as the interest was disallowed by the court below on the ground that it would be inequitable to permit the original complainant to recover it, this court cannot revise the equities of the case unless it has before it the entire record which was before the court below, a full reconsideration of all these propositions leads to the reaffirmation of the conclusions of the opinion filed September 6, 1892, and also to the additional conclusion that every substantial matter is before this court which was before the court below, with reference to the disposition of the question of interest. Although the opinion in the circuit court, filed February 24, 1891, disposing of the question of interest, is not strictly a part of the record, yet it is not improper to refer to it in a negative sense, in that it shows that the learned judge of that court took into consideration only the nature of the contract between the parties, the decision of the supreme court, and the rules of law governing the allowance of interest, and that nothing in it suggests to this court that anything of a substantial character bearing on the present controversy is omitted from the record submitted to us. The certificate of the clerk, appended to the record in this court, contains the following:

'That the foregoing is a true copy of the record, * * * except that certain portions thereof are omitted in this copy of direction of complainant's counsel, Mr. Brooks, the omitted portions being indicated by stars; and except, also, that certain other portions are omitted, and in place thereof memoranda are inserted showing where the same are to be found in the printed matter annexed hereto.'

It concludes as follows:

'I further certify that I make this certificate at the request of counsel for complainant in said cause.'

In Blitz v. Brown, 7 Wall. 693, where there was no certificate by the clerk, the writ of error was dismissed and leave to cause the certificate to be supplied was denied; but in the later case of Hodges v. Vaughn, 19 Wall. 12, leave was granted the plaintiff in error to withdraw the transcript and supply the certificate. In U.S. v. Gomez, 1 Wall. 690, a certificate from the clerk of the court below that the record was complete 'except the transcript sent up,' etc., was accepted as sufficient to bar a motion to dismiss, and to put the party appealed against to a suggestion of diminution and a motion for certiorari; and the same conclusion was reached in The Rio Grande, 19 Wall. 178, 182, 183, 188, where the first transcript contained the usual certificate, but an addition to it purported to include only extracts. In view of the pointed way in which the supreme court has condemned sending up unnecessary papers and proceedings, and of the other matters hereinafter referred to, a modified certificate can well be accepted, as was done in the two cases last cited; or the certificate in the usual terms must be construed as...