Reynolds v. Manhattan Trust Co.

• Decision Date: 24 April 1901
• Docket Number: 667.
• Citation: 109 F. 97
• Parties: REYNOLDS et al. v. MANHATTAN TRUST CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

109 F. 97

REYNOLDS et al. v. MANHATTAN TRUST CO. et al.

No. 667.

United States Court of Appeals, Eighth Circuit.

April 24, 1901

G. M Lambertson and F. M. Hall (J. W. Deweese, on the brief), for appellants.

John L Webster, for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

At the May term, 1897, of this court, the present case, entitled 'E. P. Reynolds and Company, Appellants, v. The Manhattan Trust Company et al., Appellees,' was decided on the merits. Vide 55 U.S.App. 96, 27 C.C.A. 620, 83 F. 593. The opinion was handed down on November 15, 1897, and the court was adjourned for the term on the 29th of the same month. The mandate of this court was transmitted to the circuit court in accordance with our rules, at the succeeding December term, to wit, January 8, 1898, and was duly filed in the circuit court. On February 26, 1898, a motion was lodged in this court, which presents the question now to be determined praying that the original mandate be revoked, and that a new mandate issue, directing the entry of a different decree than the one required to be entered by the original mandate.

As will appear from our original decision (27 C.C.A. 621, 622, 83 F. 593, where the facts are stated in detail), E. P. Reynolds & Co. filed a cross bill in a railroad foreclosure suit which was then pending in the circuit court of the United States for the district of Nebraska, to establish a mechanic's lien against the mortgaged property in the sum of $37,400 for work and labor done in the construction of the railroad. At a certain stage of the proceedings in the foreclosure case, as the lien was contested by the trustee in the mortgage, a bond was given to secure the payment of the amount of the appellants' claim, if their lien should be eventually established and declared to be paramount to the mortgage indebtedness. After the giving of this bond the foreclosure suit proceeded to its legitimate termination, and the road was sold under a decree of foreclosure, and passed into the possession of the purchasers at such sale. The claim for a lien was referred to a master for hearing and determination, who eventually filed a report to the effect that the cross complainants, Reynolds & Co., were entitled to a lien upon the proceeds of the sale of the railroad and upon the bond given to secure the payment of the lien; that the lien was prior to the mortgage; and that a decree should be entered in accordance with his finding, requiring the payment by the bondsmen of the amount found to be due on the lien, to wit, $13,600, and interest at 7 per cent. per annum from June 27, 1890. Exceptions to this report of the master were filed and sustained, and a decree was entered by the circuit court dismissing the lienors' cross bill and their claim for a lien. This was the decree which was formerly before this court for review, and on the hearing of the appeal this court reversed the decree of the circuit court, and sustained the decision of the master, directing that the decree below be reversed, with costs, and that the case be remanded to the circuit court, with directions to overrule the exceptions to the report of the special master, to confirm that report, and to render a decree in accordance with his recommendations. 27 C.C.A. 620, 630, 83 F. 594. The mandate of this court, when issued, was in strict conformity with its opinion, and in terms adjudged 'that this cause be, and the same is hereby, remanded to the circuit court, with directions to overrule the exceptions to the report of the special master, to confirm that report, and to render a decree in accordance with the recommendations of said special master's report. ' It was subsequently ascertained that the principal and sureties in the bond which had been accepted to secure the payment of the appellants' lien had become insolvent, and that the bond was worthless; whereupon the present motion to revoke the original mandate was filed, as above stated, with a view of inducing this court to modify its original judgment by directing a decree to be entered, giving the appellants a first lien on the railroad, and directing the same to be sold for the satisfaction of the appellants' claim.

We feel disposed to concede that if a timely application had been made to this court, by a petition for a rehearing, to modify its judgment, and to enter an order adjudging that the appellants have a lien upon the railroad, and that the road be sold if the...