Nelson v. Lowndes County
93 F. 538
5th Cir.
1899
Check Treatment

After stating the facts as above, the opinion of the court was delivered by PARDEE, Circuit Judge.

As the defendants below filed no cross bill, and as the answer prayed only for a dissolution of the injunction, and 10 per cent, damages for its wrongful issue, no affirmative relief, beyond such as necessarily tvould follow the dismissal of the bill, could have been properly awarded against the complainant in the lower court. See Bradford v. Bank, 13 How. 57; Book v. Mining Co., 58 Fed. 827; Moran v. Hagerman, 12 C. C. A. 239, 64 Fed. 499.

The case has been exhaustively argued on the proposition that the notes and deed of trust in controversy were void because, while having full authority to purchase the lands described in the deed, for a poor» farm, the county of Lowndes had no express power to issue the notes in question in payment therefor. From the examination we have given the evidence in the record, if we should hold that the notes and deed of trust were not void for the reason given, but were in all respects valid, we would still doubt whether, in equity and good conscience, the defendants below, under the circumstances shown by the pleadings and evidence, were entitled, after the payment of the principal and interest of the notes, to further prosecute the foreclosure of the trust deed to recover counsel fees aud trustee compensation. As we view the case, however, we decide none of these questions, because we are of opinion that the writ of error must be dismissed.

The suit below was properly instituted, prosecuted, and heard as a suit in equity. Under the judiciary act of 1789, and the,act of March 3, 1803, a writ of error in an admiralty case was dismissed; the court holding that “causes of admiralty and maritime jurisdiction, or in equity, cannot be removed to an appellate court by writ of error.” The San Pedro, 2 Wheat. 132. “A writ of error is not the proper mode of bringing up for review a decree in chancery. It should be brought up by an appeal.” McCollum v. Eager, 2 How. 61. In Taylor v. Savage, 2 How. 394, an appeal in a, case at law was dismissed. “Notwithstanding the peculiarities of the Civil Code of Louisiana, the distinctions between law and equity must be preserved in the federal courts in this state; and equity causes can only be brought to the supreme court for review by appeal, and causes at law by writ of error.” Walker v. Dreville, 12 Wall. 440.

*542“When a proceeding below is, in its essential nature, a 'foreclosure of a mortgage in chancery, an appeal is the only proper mode of bringing it to the supreme court.” Marin v. Lalley, 17 Wall. 14. “There are two principal methods known to English jurisprudence, and to the jurisprudence of the federal courts, by which cases may be removed from an inferior to an appellate court for review. These are the writ of error and the appeal. There may be, and there are, other exceptional modes, such as the writ of certiorari at common law, and a certificate of division of opinion, under the acts of congress. The appeal, which is the only mode by which a decree in chancery or in admiralty can be brought from an inferior federal court to this court, does bring up the whole case for reexamination on all the merits, whether of law or fact, and for consideration on these as though no decree had ever been rendered. The writ of error is used to bring up for review all other cases, and, when thus brought here, the cases are not open for re-examination on their whole merits, but every controverted question of fact is excluded from consideration; and only such errors as this court can see that the inferior court committed, and not all of these, can be the subject of .this court’s corrective power.” Murdock v. City of Memphis, 20 Wall. 621, 622. Further on it is said in the same opinion (speaking of a writ of error): “But this writ cannot bring a decree in chancery .or admiralty from the circuit court to this court for review. It has no such effect; and we dismiss, every day, cases brought here by writ of error to a circuit court, because they can only be brought here by appeal, and the writ of error does not extend to them.” “An appeal is the only mode by which the appellate jurisdiction of this court can be exercised in equity suits brought in the courts of the United States, and it does not lie before a final decree has been rendered.” Hayes v. Fischer, 102 U. S. 121. And see Improvement Co. v. Bradbury, 132 U. S. 515, 10 Sup. Ct. 177; Fleitas v. Richardson, 147 U. S. 544, 13 Sup. Ct. 429; Land Trust v. Hoffman, 6 C. C. A. 358, 57 Fed. 336. While the decree recites, “The defendants’ petition for an appeal from the decree refusing defendants’ attorney’s and trustee’s fees to appeal court of the Fifth circuit, at New Orleans, is granted by the court, upon the complainant entering into bond for costs of the appeal, in the sum .of two hundred dollars, within sixty.days from this date,” the record shows no such petition, nor that such appeal was perfected; but the record does show that the petition was for a writ of error, which was allowed, issued, and filed, and proper bond therefor accepted by the trial judge. We are clear that, if the case has been removed to this court for review, it is here solely on a writ of error, and that for the reasons given above the writ must be dismissed; and it is so ordered.