99 F. 489 | 4th Cir. | 1900
This case comes up on appeal from a decree of the circuit court of the United States for the district of West Virginia. One Joseph C. Alderson, a citizen of the state of Maryland, filed Ms bill of complaint in the circuit court of the United States for the district of West Virginia against the Loch Lynn Heights Hotel Company, a, corporation of the state of West Virginia, and certain other parties, citizens and residents of the state of Maryland. Upon the filing of that bill the property of the
. “And whereas,' in the term of May, in the year of our Lord one thousand eight hundred and ninety-eight, the said cause came on to be heard before the United States circuit court of appeals for the h'ourth circuit, on the transcript of the record, and was argued by counsel, on consideration whereof it is now ordered, adjudged, and decreed by this court that the decrees of the said circuit court appealed from in this cause be, and the same are hereby, reversed, and this cause is remanded to the circuit court of the United States for the d'strict of West Virginia at Parkersburg, with instructions to vacate the order ratifying the sales made by the receiver, and the order distributing the purchase money, and that it direct that the payments made by the purchasers be returned to them, and-that the decrees for sale be set aside, and the bill dismissed: the costs to be paid by the appellee. It is further ordered that the mandate of this court issue after the expiration of twenty days from the date hereof.”
When the case was called in the circuit court, the mandate having been entered, N. E. Whitaker and D. H. Taylor, sureties of Sommerville, receiver, intervened by petition, praying that the money paid by them into the registry be returned to them. The gravamen of the petition is that this court had reversed altogether the decree of the circuit court below, holding that that court had no jurisdiction; that, therefore, all of its acts were void, the appointment of the receiver was void, and his bond a nullity; that there was no obligation on the part of the sureties to pay this money, and its payment into the hands of the clerk did not deprive them of their title thereto. Tire circuit court granted the prayer of the petitioners in these words:
*491 “It appearing to the court that of the money in the registry of the- court to the credit of this cause the sum of $5,569.18 was not paid into the registry by the receiver in this cause, whose action in making the sale of the property, as well as receiving payment therefor, is held to be void, but was paid into such registry, $4,455.34 thereof by Nelson E. Whitaker and $1,113.84 by D. H. Taylor, under a void order of the court, such payment having been made as is set forth in the respective petitions aforesaid of said Whitaker and Taylor, and that it is but just that the money paid by each of them should be returned to him, it is therefore ordered, adjudged, and decreed that of the money now in the registry of this court to the credit of this cause $4,455.34 be repaid and returned by the registrar to Nelson E. Whitaker, and $1,113.84 be repaid and returned to said D. II. Taylor by the registrar.”
To this decree a petition for leave to appeal was presented and allowed upon the exceptions, and the cause is here for adjudication. The grounds of exception are that the circuit court erred in not obeying the mandate of this court in ordering the return of the money paid by Slingluff, then in the registry of this court, and that the circuit court erred in that it ordered the return of this money to the sureties.
As to the mandate. The mandate of this court recited in full the decree of the court below. That decree recited, among other things: “That the said Slingluff paid to the said receiver the sum of §5,536.66 in cash, and delivered to said receiver his two notes for §5,536.66, dated 22d June, 1897, and payable, respectively, in six and twelve months, with interest, and the said money, with the sum of §116.52, which remained in said receiver’s hands from other sources, having been paid into the registry of this court, and being now in the hands of L. B. Dellicker, clerk of this court.” The mandate, as has been stated, after reversing the decrees of the court below, remands the case, with instructions to vacate the order ratifying the sales made by the receiver and the order distributing the purchase money, and “that it direct that the payments made by the purchasers be returned to them, and that the decrees for sale be set aside, and the bill dismissed.” “It is well settled,” says the supreme court in Re Blake, 20 Sup. Ct. 42, Adv. S. U. S. 42, 44 L. Ed.-(Nov. 13, 1899), “that when the mandate leaves nothing to the judgment of the court below, and that court mistakes or misconstrues the decree or judgment of this court, and does not give full effect to the mandate, its action may be controlled either upon a new appeal or writ of error, if involving a sufficient amount, or by a mandamus to execute the mandate of this court,” — and cases cited.
In the case In re Sanford Fork & Tool Co., 160 U. S. 255, 16 Sup. Ct. 293, 40 L. Ed. 416, the court says:
“When a caso lias been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court and disposed of by the decree is considered as finally settled. The circuit court is bound by the decree as the law of the case, and must carry it into execution by its mandate. That court cannot vary it, or examine it for any other purpose than execution, or give any other or further relief, or review it, even for apparent error upon any matter decided on appeal, or intermeddle with it further than to settle so much as has been remanded.”
See, also, In re Washington & G. R. Co., 140 U. S. 91, 11 Sup. Ct. 673, 35 L. Ed. 339.
• The petitioners below affirm that the money in the hands of the clerk, in the registry of the court, referred to in the decree below, was not put there by the receiver as part of the proceeds of sales; that it was, in fact, paid in by them under the supposition that they were sureties for the said receiver; that, inasmuch as all the orders of the circuit court have been reversed, including that appointing the receiver, the bond given by them as surety for him, supposing him to be a receiver, is null and void. Under these circumstances they ask restitution of this money. Notwithstanding the strong language used by the supreme court in the cases cited, it would seem that under some circumstances a discretion exists in the circuit court receiving the mandate. “This court,” says Mr. Justice Wood, sitting on circuit, “is not, under all circumstances, bound to render a servile obedience to the mandate of the supreme court. It is bound to exercise a judicial discretion in the interpretation and execution of the mandate.” The Sabine, 50 Fed. 217. In Story v. Livingston, 13 Pet. 373, 10 L. Ed. 200, the supreme court ,says: “The mandate is to be interpreted according to the subject-matter to which it has been applied, and not in a manner to do injustice.” In West v. Brashear, 14 Pet. 53, 10 L. Ed. 350, the supreme court held that, when the language of the mandate was precise and unambiguous, the duty of the circuit court was to carry into execution, and not to look elsewhere for authority to change its meaning. But, examining the case, the court approved an examination made by the circuit court into the meaning of the mandate, and putting a construction upon it. This construction was coincident with that of the supreme court. In Ex parte Morris, 9 Wall. 605, 19 L. Ed. 799, the supreme court had reversed a decree rendered against Morris and another, and by its mandate directed the marshal to make restitution- to them of whatever they had been compelled to pay under the reversed decree. Some of the money had been distributed. The remainder had been deposited by the marshal, under order of court, in a national bank, which had failed pendente lite. These facts were held to have exonerated the marshal from obeying the mandate, and this was sustained by the supreme court. In 139 U. S. 216, 11 Sup. Ct. 523, 35 L. Ed. 151, is a case (Fuel Co. v. Brock), which resembles this case, and, in our opinion, controls this branch of it. In that case the bill had been dismissed for want of jurisdiction, and the mandate went down accordingly. The court below, after the receipt of the mandate, entered an order that certain moneys which had been paid on account of the reversed judgment be returned to the parties who had paid them believing it to be valid. From this order an appeal was taken to the supreme court. Mr. Justice Field, speaking for the court, says: “The alleged error of the court below is that it had no jurisdiction to render judgment for restitution of the money collected on the reversed judgment; * * * that that court had no authority to act fur
If, therefore, the petitioners are right in their contention that they had paid this money into court under a void order and an invalid bond, the circuit court had jurisdiction, notwithstanding the dismissal of the bill for want of jurisdiction, to correct by its own order that which, according to the judgment of its appellate court, it had no authority to do in the first instance. The circuit court was not in error in entertaining the petitions.
This brings us to the merits of the case. Was J. B. Sommerville receiver in the cause? Was the order requiring him to give bond, with sureties, a valid order? And were the bonds given by him, with these petitioners as sureties, valid bonds? Were the appointment of Sommerville, receiver, wholly irregular, — even contrary to law and its policy, — this would not relieve him, or those persons who became surety for him, from the legal and moral obligation to account for the money placed in his hands by reason of and in faith of his bond, with surety. U. S. v. Maurice, Fed. Cas. No. 15, 747. In that case, Chief Justice Marshall, sitting on circuit, discusses this same question, and lays down the law as has been stated. He concludes his argument in these words: “If, then, this appointment be contrary to the policy of the law, the repayment of the money under it is not, and a suit may, I think, be sustained on the bond given for that purpose.” Referring to the cases cited against his position, of Collins v. Blanton, 2 Wils. 341, Paxton v. Popham, 9 East, 408, Pole v. Haerobin, Id. 416, he shows that these bonds were given for the payment of money for an unlawful purpose. But these cases differed from the one before him and from the case at bar. Heither in that case nor in this was the bond given to induce the illegal appointment, or for any purpose in itself unlawful, but for the sole custody of money placed in the hands of the
The learned counsel for the appellees with great earnestness contends that these bonds are void, because, the court being without jurisdiction, there could be no receiver de jure, and so there can be no receiver de facto, if there were ño receiver de jure. They rely on Norton v. Shelby Co., 118 U. S. 441, 442, 6 Sup. Ct. 1121, 30 L. Ed. 178. That case holds that, where there is no office in existence which the law will recognize, there can be no office de facto. But the office of receiver (if we may call it an office) has a recognized existence. It is the mode in which a court of equity protects property which’ it has taken into its custody. The inherent right of the court of equity is to name such a person, who is called its receiver; and, as has been seen, the appointment of a receiver determines no right. He simply holds for the court. In fact, the receivership is more in the nature of a condition. “His position is somewhat analogous to that of a corporation sole.” So long as property remains in the custody of the court, and is administered through the agency of a receiver, such receivership is continuous