73 F. 562 | 6th Cir. | 1896
This is an appeal taken by the Central Trust Company of New York from a decretal order made by the court below upon a petition (therein stated to be in the nature of an amended and supplemental bill) fill'd in the case of The Central Trust Company of Yew York v. The Chattanooga, Rome & Columbus Railroad Company and The Bavannah & Western Railroad Company; a suit then pending in said court, and which was instituted for the foreclosure of certain mortgages hereinafter mentioned, executed lnr the Chattanooga, Rome & Columbus Railroad Company. This petition named H. Clay Evans and James and Key(zenstein, who had joined with him, as creditors of tlie Chattanooga, Rome & Columbus Railroad Company, and Hloau, Lyerly, and Ban* & McAdoo, the sureties in certain replevin bonds, as defendants therein, and prayed for an injunction against the issuing of execution upon the decree in favor of H. Clay Evans et al. entered in the court below upon the coming down of the mandate from this court in the case of Railroad Co. v. Evans, reported in 14 O. O. A. 11(5, 66 Fed. 869. The circuit court denied the petition for the injunction prayed, and the petitioner has brought the case here on appeal.
“Now, if said principal obligors herein shall pay the debt, interests, and costs of the complainant, if the court shall adjudge the same against them, or either of them, or shall adjudge the property attached and herein replevied is subject to the payment of same, they shall either pay said debt, interests, and costs, or return said property, then this obligation to be void and of no effect.”
A like attachment and replevy of the property upon a bond with Lyerly as surety were made upon the coining into the suit of the
It must be noted, in the outset, that the appeal we are now considering is not an appeal from the decree which was made by the circuit court, which stands without any proceeding to reverse or change it in any way, but it is based on the subsequent order of the court denying the appellant’s petition. No ground appears for 1he assumption that while that decree stands the circuit court would have authority to entertain this proceeding, taken for the purpose of defeating its substantial purpose and effect. Here was a decree affording to the complainants, Evans and others, in that suit, distinct and'unconditional relief, viz. that of having the attached property. brought into court and subjected to the complainant’s demands, or, in the alternative of that, the payment into court, for the same purpose, of the value thereof. The enjoining of the complainants from taking the usual remedies for the enforcement of the decree would amount to a nullification of. the decree itself, pro tanto. The right of the complainants,' Evans and the creditors who joined him in this suit, as against the obligors on these bonds, was fully considered by this court on the appeal in the former case, and definitely ascertained and determined by the decree which it directed to be entered. The decree of the court below was, in substance and effect, that which this court ordered and directed.. Its conformity to the mandate of the court is not disputed by any proper challenge, and no reason is perceived for doubting that it was authorized by the opinion and mandate of this court. The suggestion that that decree may be defeated in this way cannot be entertained. Upon the entry of it, the complainants in the suit were entitled to a direct and immediate performance of it. It did not leave them in a position where it' would be necessary, in order to realize the benefits of it, for them to institute some new proceeding in that court, or any other; nor were they under any liability to be brought into a. fur
“We hold that this bond must be regarded as a bond ol‘ the second class, and that Us penalty Is for double the value of the property attached. The proper decree is for 1ho peimlgv of the bond, to be discharged upon the delivery of the property replevied. Inasmuch as the value is not; specifically stsited in the bond, it may, as was done in Kuhn v. Spellacy, supra (no reference having been asked below), be assumed that the value was one-half the penalty of the bond, or §4.500. By the payment ot that sum, with interest from the date of the bond, the decree may be discharged.”
And further:
“It was intimated in Kuhn v. Spellacy, supra, that it was perhaps unnecessary to recite in the decree that it might be satisfied by a return of file property, as the right accrues under the statute itself. However this might he if tills proceeding was in the state court, it is clearly right that the decree should be so modified as to permit the appellants to satisfy the decree by returning the property replevied. This they may do, provided the property shall be placed In the custody and possession of the circuit court within thirty days after that court shall modify the decree as hereby directed.”
And the decree of the court below was subsequently modified accordingly, and the rights of the parties became thereby fixed, and it was not competent to take any action in the circuit court which would contravene or further modify them. This has always been the rule in the supreme court of the Kniled Stales, and lias always been acted upon, not only in that court, but in the Knifed States circuit courts of appeals, which have succeeded to a pan of the jurisdiction of the supreme court. Bee, among other cases, Humphrey v. Baker, 103 U. S. 736; Caines v. Rugg, 148 U. S. 238, 13 Sup. Ct. 611; Railway Co. v. Anderson, 149 U. S. 237, 13 Sup. Ct. 843. Many of the cases are collected In the opinion of this court delivered by Judge .Lurton on the second appeal of a cast' (Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co. of Grand Rapids, 72 Fed. 345), where the rule was held to apply to (he case of a mandate sent down to the circuit court upon the affirmance of an interlocutory decree for an injunction.
But it is contended that the court below having the properly which had been replevied in the Evans Case already in ii.s possession and control, by' virtue of its authority over the receiver in the foreclosure ease brought by the Geni ral Trust Company of Xew York, (he obligation of the replevy bond was substantially per