66 F. 179 | 5th Cir. | 1895
The supreme court, in the opinion delivered by Mr. Justice White, saw fit to specifically prescribe the final decree to be entered in this case as follows:
“The decree is reversed, and a decree is rendered in favor of Martha Groves and William J. Groves, directing the payment out of tlie fund of $4,873, with interest at eight per cent, from March 5, 1884, until paid, and costs of this and the court helow.” Groves v. Sentell, 153 U. S. 465-486, 14 Sup. Ct. 898.
The mandate filed in the circuit court concludes as follows:
“On consideration whereof, it is now here ordered, adjudged, and decreed by this court that the decree of the said circuit court in this cause be, and the same is hereby, reversed, with costs; and that the said Martha Groves, William J. Groves, and Thomas A. Pogue, administrator of Itosetta Rhea, deceased, recover against the said George W. Sentell et al. three hundred and forty-nine dollars for their costs herein expended, and have execution therefor. And it is further ordered that this cause be, and the same is hereby, remanded to the said circuit court with directions to enter a decree directing the payment to> Martha Groves and William J. Groves, out of the fund in the registry of the court, the sum of $4,873, with interest at 8 per centum per annum from March o, 18S4, until paid, with costs in that court.
“May 14, 1894.
“You therefore are hereby commanded that such execution and further proceedings be had in said cause, in conformity with the opinion, and decree of this court, as, according to right and justice, and the laws of the United States, ought to be had; the said appeal notwithstanding.”
In tlie circuit court, on filing tlie mandate, a decree was entered adjudging that the whole amount in the registry of .the court in the case be paid to Martha Groves and William J. Groves, and, further, that George W. Sentell, Fanny B. Randolph, William B. McLean, liquidator of the partnership company of G. W. Sentell, testamentary executor of Benjamin Conyers, deceased, be condemned in solido to pay the sum of $349, costs expended in the supreme court of the United States, and the further sum of $507.50, costs in the circuit court, for which sums execution was directed.
The first assignment of error in this court is:
“That the court erred in not complying with the final decree of tlie supreme eom't, as set forth in its mandate, and the opinion upon which same was based.”
The decree prescribed by the supreme court and directed to be entered in the circuit court was not a personal decree against any of the parties to the suit, except for the sum of $349, costs of the supreme court, but was a decree disposing of the fund in the registry of the court, of which alone it would seem, from the pleadings, the court had jurisdiction. As the decree of the circuit court rendered in pursuance of the mandate gave all the fund in the
The second assignment of error is:
“That tlie court erred in limiting its decree to the sum of it'i.SJO, now in its registry; in not ordering the amount to he at once paid on account; and in not ordering George W. Sentell to fill up the registry with a sufficient fund to satisfy the balance found due by him to Martha Groves and William ,T. Groves by the supreme court, with interest accrued to date, and their counsel fees.”
The real proposition- asserted by this assignment of error is that George W. Sentell should be required to pay into the fund interest at 8 per cent., pending the suit. According to the opinion of the supreme court, the original bill of George W. Sentell was not a strict bill of interpleader, because of an ultimate interest of Sentell in the fund in controversy; but that, as a bill in the nature of a bill of interpleader, it was allowable. The difference between a strict bill of interpleader and a bill in the nature of a bill of interpleader, so far as practice and proceedings are concerned, is that in tbe one tbe complainant is entitled of right to his costs, including solicitors’ fees, while in the other — as generally in equity cases— the costs are within the discretion of the court. Willard, Eq. Jur. (Ed. 18631 p. 321. In both the fund should be paid into the court before any order is made in tbe case. 2 Daniell, Ch. Prac. 1563, and cases there cited. If paid into court to the full amount, no interest on the fund in the court while proceedings are pending ought to be required of the complainant, unless some fault or delay in the proceedings can be aliribuled to his conduct. In Spring v. Insurance Co., 8 Wheat. 270 293, the complainant in a bill of interpleader was required to pay interest on tbe fund pending tbe proceedings, because he had not. paid the same into court. In Richards v. Salter, 6 Johns. Ch. 445, the complainant was excused from paying interest because he had. with all reasonable diligence, resorted tc the court, and paid tbe money into court, after in vain calling on tbe defendant for indemnity. The record in this case shows that at the time the fund was paid into court the full amount, principal and interest, to wit, the sum of $1,873, with interest thereon a: the rate of 8 per centum per annum from March 5, 1884, aggregating the sum of $5,713.46, was paid into court. The fault herein attributed to the complainant, George W. Sentell, as a reason for charging him with interest upon the fund while lying in the registry of the court is that, soon after the injunction restraining the Groveses and others from prosecuting their suit at law was issued, Mrs. Groves and others, through their counsel, suggesting that the funds were on deposit in the registry, and that from the showing-before the court the same belonged to movers, took a rule oil the complainant to show cause why the movers in the rule should not be permitted to withdraw tbe same on giving bond for the amount thereof, with surety to be approved by the court, without prejudice
The third assignment of error is:
“That the court erred in not requiring the return to the registry of the sum of $350, taken therefrom as costs of George W. Sentell, and paid to the officers of the court as such costs pendente lite.”
The record shows that the circuit court, in rendering the final decree in the case (which was reversed), adjudged that “there be allowed and paid out of the fund in the registry of the court a fee of $250 'to E. M. Hudson, Esq., solicitor for the complainant, for services in filing the bill of interpleader, and conducting the proceeding therein”; and, further, “that there be paid out of the registry of the court to the master specially appointed to take the testimony and state the account the sum of $100.” These sums were paid out of the registry pending the appeal. In the opinion of the supreme
The fourth assignment of error is:
“That the court erred, if it was without power to order the registry to be filled up with a sufficient amount to fully satisfy said mandate, in not reserving the right to Martha Groves and William J. Groves to proceed for the balance found to be due, after exhausting the registry, under and with their original action enjoined by George W. Sentell; said injunction being in effect finally quashed.”
The record shows that the circuit court, on the bill of complaint, directed the defendants in such bill to show cause on June 5, 1886, why an injunction should not issue according to the prayer of the bill, and in the meantime ordered a restraining order to the same purport to be issued; but it does not show that any such rule was ever heard or otherwise disposed of, or that the restraining order was ever dissolved or perpetuated. The decree of the supreme court is silent as to any injunction or restraining order. We are therefore unable — even if otherwise it would be within our province— to express an opinion as to whether said injunction was in effect quashed. We are clear, however, that, whatever the effect on the injunction, the circuit court was in no wise called upon to enlarge or limit in favor of Martha Groves and William J. Groves the specific decree prescribed by the supreme court in the case. The decree of the circuit court is affirmed.