213 F.2d 443 | 2d Cir. | 1954
Lead Opinion
This appeal is an aftermath of the pri- or decision of this court reported in Chemical Bank & Trust Company v. Prudence-Bonds Corporation (New Corporation), 2 Cir., 207 F.2d 67, certiorari denied 347 U.S. 904, 74 S.Ct. 429. The case involved an accounting by the Bank as successor trustee under a trust agreement securing the Fifteenth Series of bonds issued by the debtor corporation. Objections to the account were filed, some of which were sustained and others rejected by the District Court. Its decree, entered December 19, 1952, gave judgment against the Bank for $262,760.-17, with interest thereon at 6% per annum from the date of the decree. Both the Bank and the Objectors appealed. On the Bank’s appeal we affirmed; on the Objectors’ we reversed, with directions to increase the surcharge by $902,-750, with interest at 3% per annum on the several items making up such additional surcharge, and to require the Bank to pay all costs of the proceeding. A mandate, in the usual form, taxed appellate costs in favor of the Objectors in the sum of $1957.31, and directed that further proceedings be had “in accordance with the decision of this Court.”
The decree now before us provides that Prudence-Bonds Corporation (New Corporation) recover from the Bank the following four sums: (1) $262,760.17 (the amount of the original judgment entered December 19, 1952); (2) $1,489,-074.42 (the amount of the additional surcharge of $902,750, plus interest of $586,324.42, such interest being computed on the various items making up the additional surcharge at 3% per an-num from their respective dates up to December 19, 1952); (3) $28,078.85 (being the increase in costs above those included in item (1) ). Each of these three items is to carry interest at 6% per annum from December 19, 1952. Item (4) is $1957.31 (the appellate costs as taxed in our mandate) and is to carry interest at 6% per annum from the date of the decree, October 23, 1953. The appellant contends that none of the above items should carry 6% interest before entry of the decree on mandate.
Since we affirmed the 1952 judgment in so far as it awarded recovery of $262,760.17, we think the decree on mandate is correct in applying the 6% judgment rate from December 19, 1952. This accords with 28 U.S.C.A. § 1961 and Rule 29(a) of the Rules of this court. As to the additional surcharges based on releases of cash, we stated that each should bear interest “at 3% from the date when it was made.” We did not state when the interest period should end, but the implication is clear that it should continue until entry of the decree awarding recovery of the surcharges. We did not direct entry of judgment as of December 19, 1952. Until the decree on mandate was entered, the amount of the additional surcharge
The appellees request that if the court should be of opinion that it was necessary for its mandate to provide specifically for interest on the increased awards at the judgment rate of 6% from the date of the original judgment, that the mandate be recalled and so amended. This request is denied. The delay in the entry of the proper judgment was necessary in the sense that time for appellate reviews was required. See Briggs v. Pennsylvania R. Co., 2 Cir., 164 F.2d 21, 23, 1 A.L.R.2d 475, affirmed 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403. The decree on mandate in President and Directors of Manhattan Co. v. Kelby, 2 Cir., 147 F.2d 465, certiorari denied 324 U.S. 866, 65 S.Ct. 916, 89 L.Ed. 1422, is not a controlling precedent to the contrary, since the decree on mandate was never reviewed.
The judgment is modified and cause remanded for recomputation of interest in conformity with this opinion.
. Our opinion was filed August 20, 1953; the mandate was issued October 5, 1953 after denial of the Bank’s petition for rehearing, and filed in the District Court October 7.
. Timely notice of appeal was filed November 19, 1953. On December 30, 1953 the Bank filed a petition for certiorari to review the prior decision of this court. This was denied February 1, 1954, 347 U.S. 904, 74 S.Ct. 429. Thereafter on March 9, 1954 the Bank filed its brief and appendix.
Dissenting Opinion
(dissenting).
On the former appeal, 2 Cir., 207 F.2d 67, we held that the district judge had erred in failing to find that the Bank owed substantially the amount previously determined by the Special Master, whose conclusions the judge had over-ruled in large part. In other words, we held that, had the judge not erred, his judgment, entered on December 19, 1952, would have been not merely for §262,-760.17 but for about a million dollars greater.
The judge, in arriving at his much smaller judgment of $262,760.17, had included interest at 3% up to the date of judgment (i. e., December 19, 1952). We said, 207 F.2d at page 77, that, as the Bank had been but negligent and not guilty of bad faith, we would not disturb the exaction of only 3% (instead of 6% as urged by the plaintiffs) to the date of judgment, since, in the circumstances, that was a matter within the judge’s discretion. But I do not at all agree
I agree that, in the light of Briggs v. Pennsylvania R. Co., 2 Cir., 164 F.2d 21, 23, affirmed 334 U.S. 304, 68 S.Ct. 1039, 1040, 92 L.Ed. 1403, our mandate did not authorize the judge to enter judgment on the mandate as he did. But in the Briggs case, both this court and the Supreme Court (1) stressed the fact that our term had expired when the second
Since our decision in the Briggs case (1947), Congress has abolished court terms and we are now entirely free to change our mandate to achieve justice. See 28 U.S.C. § 452, and National Comics Publication v. Fawcett Publications, 2 Cir., 198 F.2d 927. Moreover, here the plaintiffs specially request us to amend our mandate. My colleagues’ decision refusing to do so is, I think, in direct conflict with Givens v. Missouri-Kansas-Texas R. Co. of Texas, 5 Cir., 196 F.2d 905. I hope, therefore, that the Supreme Court will grant certiorari here.
. I happened to he one of the panel of this court which heard and decided the earlier appeal.
. See Givens v. Missouri-Kansas-Texas R. Co. of Texas, 5 Cir., 196 F.2d 905, 906.
. Emphasis added.