Southern Bldg. & Loan Ass'n v. Carey

• Decision Date: 19 July 1902
• Court: U.S. District Court — Western District of Tennessee
• Parties: SOUTHERN BUILDING & LOAN ASS'N. v. CAREY et ux.

117 F. 325

SOUTHERN BUILDING & LOAN ASS'N. v. CAREY et ux.

United States Circuit Court, W.D. Tennessee.

July 19, 1902

Thomas M. Scruggs, for plaintiff.

Thomas. W. Brown, for defendants.

HAMMOND J.

This is an application for an appeal from an order entered upon the mandate of the circuit court of appeals in the case of Association v. Carey, 114 F. 288. Before that appeal was taken there had been an accounting by the receiver before the master, leaving a balance of about $400 in his hands which was ordered to be paid to the defendant Mrs. Carey which was the judgment affirmed. When the mandate was filed in this court the plaintiff company asked leave to file a petition praying that this sum of $400 should not be paid to Mrs. Carey until certain delinquent taxes due upon the property foreclosed should be paid. It is stated in the petition that in accounting with the master the receiver had omitted to pay these delinquent taxes, and that they had since been paid by the plaintiff company, after its purchase of the property under the foreclosure decree. The petition also asked that certain costs claimed to have been reserved by the original decree should now be decreed against Mrs Carey, and paid out of the fund in the hands of the receiver. The court refused to entertain this petition or to allow it to be filed, and directed a decree upon the mandate paying the fund to Mrs. Carey, and decreeing costs against the plaintiff company. From this an appeal is prayed, and the application is resisted upon the ground that it is a frivolous appeal for delay, and does not lie, because the decree from which the appeal is sought is in strict conformity to the mandate of the circuit court of appeals and is only in execution thereof. This may be true, and yet the application cannot be denied. Rule 33 of the rules of the supreme court (3 Sup.Ct. xviii) and rule 30 of the circuit courts of appeals (31 C.C.A. clxviii, 90 F. clxviii) furnish the only remedy known to the law against frivolous appeals for delay, by imposing damages not exceeding 10 per cent. for the delay at the discretion of the appellate court. It is said by the supreme court in the case of The Douro, 3 Wall. 564, 18 L.Ed. 168, that:

'An appeal is a matter of right, and, if prayed, must be allowed, but should never be prayed without some expectation of reversal. We impose penalties when writs of error are sued out merely for delay in cases of judgments at law for damages; and, if the rule were applicable to the case before us, we should apply it.'

See, also, Prentice v. Pickersgill, 6 Wall. 511, 18 L.Ed. 790.

The rules above mentioned at first were applicable only to writs of error at law, but they were subsequently extended to cases of appeal in equity and in admiralty, covering the very situation mentioned by the court in the above quotation. These rules apply as well to cases of a second appeal from an order upon the mandate as to original appeals. In any case the court, justice, or judge granting the appeal is but little more than a ministerial officer carrying into effect the statutes in that behalf. Whether the appeal is one that ought or ought not to be taken, that may or may not be entertained on its merits, or should be redressed by damages for the delay occasioned in taking it, is a question solely for determination by the appellate court. The court or judge passing upon an application for an appeal can only refuse it in those cases where no appeal at all is allowed, and where the judgment of the original court is absolutely final, which can never be said of such decrees as this.

Cases of appeal or writ of error from judgments entered upon the mandates of the appellate court are almost innumerable. Ex parte Union Steamboat Co., 178 U.S. 317, 20 Sup.Ct. 904, 44 L.Ed. 84, where the cases are numerously cited. It is there said that 'the inferior court is justified in considering and deciding any question left open by the mandate and the opinion of this court, and its decision upon such matters can only be reviewed upon a new appeal to the proper court. ' In this case the plaintiff contends that final judgment for costs was not decreed by the court of appeals, and should not now be adjudged against it; also that the taxes delinquent and not paid at the time of its purchase under the foreclosure decree should be paid by the receiver, and that its omission to pay them before the sale should not affect that right; and that these matters were not adjudicated in the court of appeals. The court here is of the opinion that the decree of the court of appeals is effective as to all these matters, and that inasmuch as it settles that Mrs. Carey was not liable beyond her undertaking to mortgage the corpus of her estate, and that the fund in the hands of the receiver represents rents or profits which were not mortgaged by her, it is a necessary inference from the mandate that there should be no decree against her for either costs or taxes in exoneration of the plaintiff company. Therefore the petition presented was refused, and not allowed to be filed. But it now seems to the court quite certain that this application for appeal from that construction of the mandate falls within the category mentioned by Mr. Justice Brown in the quotation above made from the case of Ex parte Union Steamboat Co., supra.

If there were nothing involved but the question as to the costs, it is possible that this court might refuse this application for appeal, upon the ground that no appeal lies from a mere decree for costs. But the application further involves the question made as to the liability of Mrs. Carey to pay the delinquent taxes, which is sufficient to give the appellate court jurisdiction over both questions, as was ruled in Bank v. Hunter, 152 U.S. 512, 14 Sup.Ct. 675, 38 L.Ed. 534. this court is further of the opinion that this matter ought to have been settled prior to the former decree which was appealed and confirmed. The plaintiff ought to have diligently ascertained the taxes delinquent before any sale was had under the foreclosure decree, or at least before its purchase of the property, and have had the same paid out of the fund, if it were liable therefor; but, not having done this, it was the plaintiff's own fault that the matter was not so litigated, and the question is therefore res judicata by the decree of the appellate court.

Mackall v. Richards, 116 U.S. 45, 6 Sup.Ct. 234, 29 L.Ed. 558. It was said in that case that the appellate court will not entertain a second appeal from a decree upon its own mandate where that decree conforms to the mandate; but obviously this is a question for that court to decide, and not this court upon the application for the appeal. The case of Stewart v. Salamon, 97 U.S. 361, 24 L.Ed. 1044, shows that the proper remedy against such appeals as that applied for here is by a motion to dismiss the appeal made in the appellate court, and upon that motion the court will examine the decree made upon the mandate, and if it be in conformity to that mandate the appeal will be dismissed, but, if not, the error will be corrected. And this and many subsequent cases show that, where a second appeal does not lie for the correction of any alleged errors in entering a decree upon the mandate, a mandamus in aid of the mandate is the proper remedy. The dissenting judge in that case thought that the remedy of dismissing the appeal was not a proper one, but that the appeal should be entertained and heard notwithstanding that it was taken only for delay, for which delay he said that the only remedy was the damages allowed under rule 33, supra. But I have searched in vain for any case authorizing or intimating that the court or judge below could refuse to grant such an appeal, even when it was apparent that it was taken only for delay. That is a question which it seems to me the court below cannot decide.

The cases are numerous, and it is unnecessary to cite them further, which establish the foregoing practice upon this subject. As I understand them, the court below has no discretion in any way to alter or amend the decree of the appellate court, and has no further duty than to enter the decree of enforcement according to the mandate. But if disputes arise as to the interpretation of the mandate, and as to what does or does not conform thereto, a second appeal is open to the parties to settle those disputes. Or if subsequent proceedings are taken, or are offered and refused, as in this case, a second appeal is open to the parties, to review the action of the court in allowing or disallowing such subsequent proceedings. And in cases where for any reason a second appeal is not allowable, mandamus is the remedy for the correction of such alleged errors occurring after the mandate has arrived, as if the plaintiff company here should be put to a mandamus to compel us to entertain and file its petition; but always a second appeal, if that be possible, seems to be the preferable remedy. Hinckley v. Morton, 103 U.S. 765, 26 L.Ed. 607; Martin v. Hunter, 1 Wheat. 304, 4 L.Ed. 97; Cook v. Burnley, 11 Wall. 677, 20 L.Ed. 84; Ex parte Washington & G.R. Co., 140 U.S. 91, 11 Sup.Ct. 673, 35 L.Ed. 339; Gaines v. Rugg, 148 U.S. 228, 242, 13 Sup.Ct. 611, 37 L.Ed. 432.

It is intimated, if not decided, in Perkins v. Fourniquet, 14 How. 328, 330, 14 L.Ed. 435, that the court below may go on and execute the decree of the appellate court notwithstanding an appeal taken after the mandate has been entered and decreed, but it is not suggested that the court below may refuse the second appeal. Nor are we told under what circumstances the court should proceed with the execution of the mandate notwithstanding the appeal, and no subsequent case has been found where such a course was taken. I...