140 F. 207 | U.S. Circuit Court for the District of Eastern North Carolina | 1905
Now comes F. H. Busbee, of counsel for defendants, after notice served upon James E. Shepherd, counsel for complainants, and moves for an order releasing the sureties on the bond given by defendants on appeal to the Circuit Court of Appeals and to the Supreme Court, and, the cause being argued, it is held: That this Court has no power or authority to modify or change the mandate of the Circuit Court of Appeals affirming the decree of this court, and that, the said decree being affirmed by the Circuit Court of Appeals, this court must administer this estate, and the matters involved in the suit, according to the mandate of the Court of Appeals. The original decree, which was drawn by the counsel in the case at the request of the court, touching the matter of costs, provides that the plaintiffs “recover judgment for the sum of $50,000 and interest, * * * according to the terms of the mortgage from February 17,1891, and the costs of this action”; and the land described in the bill of complaint is condemned and charged with that amount and said costs. While this court cannot modify the said mandate of the Court of Appeals, under the clause “this cause is held for further direction,” it may and has authority to construe said mandate, and the sentence quoted is construed to mean that the defendants be taxed with all the costs of the litigation up to and including the final decree, and this is the purpose for which the bonds were executed, and that the land be taxed or the fund arising therefrom, with the costs accruing after the final decree. And hereupon it is ordered that upon filing certificate of the clerk of the United States Circuit Court of’Appeals, and the United States Supreme Court that there are no costs unpaid in those courts in this cause mentioned, standing in the name of F. M. Wirgman et al., appellants, v. H. H. Persons et al., and the payment of the costs in this court, the bonds filed herein are ordered to be canceled.
