MACKALL, Jr., v. RICHARDS and others.

116 U.S. 45 (6 S.Ct. 234, 29 L.Ed. 558)

MACKALL, Jr., v. RICHARDS and others.

Decided: December 14, 1885

W.

B. Webb and Enoch Totten, for motion.

W. Willoughby, against motion.

WAITE, C. J.

This is an appeal from a decree of the supreme court of the District of Columbia entered at general term upon a mandate from this court. In Stewart v. Salamon, 97 U.S. 361, this rule was promulgated: 'An appeal will not be entertained by this court from a decree entered in a circuit court or other inferior court in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and if it conforms to the mandate dismiss the case with costs. If it does not, the case will be remanded, with appropriate directions for the correction of the error.' This suit was begun in the supreme court of the District of Columbia, May 2, 1871, to subject to the payment of certain judgments so much of lot 7 in square 223 of the city of Washington as had not been conveyed by the marshal of the District of Columbia to Alfred Richards by deed bearing date October 7, 1870. A decree was entered in favor of the complainants, at special term, on the twenty-third of May, 1873. This decree was affirmed at general term, October 16, 1873, and by this court March 19, 1877. Under the decree, a sale was made and reported to the court below, but upon the return Mackall filed exceptions because the property had not been sufficiently described. Upon hearing, these exceptions were sustained, and the sale set aside. The court then took steps to fix the boundaries of the property, and on the eleventh of December, 1879, a decree was entered at special term directing that the sale be made according to a certain description. From this an appeal was taken to the general term, where the decree was affirmed, April 5, 1881, in all respects, except that one of the two trustees who had been appointed to make the sale was removed at his own request, and the other directed to proceed alone. An appeal was thereupon taken to this court, where the only error assigned was that the boundaries of the property had been erroneously fixed. At the last term this appeal was heard, and the cause was remanded, with the directions 'to set aside the decree from which this appeal is prosecuted, and to order the sale in satisfaction of complainant's demands, and in such mode as may be consistent with the practice of the court and with law, of all of lot seven (7) outside of that on which the building known as 'Palace Market' stands.' Mackall v. Richards, 112 U. S. 369; S. C. 5 Sup. Ct. Rep. 170. On the production of this mandate, the court below entered a decree at general term in all material respects like that appealed from, except in the description of the property, which was made to conform exactly to the order of this court. Upon examination, therefore, we are satisfied that the decree as entered is in accordance with the mandate. As no complaints were made on the second appeal about the terms of sale, or the manner in which the sale was to be made, it was quite right in the court to follow the old decree in those particulars, which has been substantially done. As the appeal was taken for the sole purpose of correcting the description, it was proper to construe the mandate as in effect nothing more than an order for such a correction, leaving the remainder of the decree to stand. The decree upon the mandate, although rendered at general term, was still the decree of the supreme court of the district, (Richards v. Mackall, 113 U. S. 540, S. C. 5 Sup. Ct. Rep. 535,) and the order on the trustee to report his sale to 'this court' can work no injury. The order to take possession was part of the original decree, and as no objection was taken to it on the former appeals it ought not to be permitted now.

A motion was made by Mackall in the court below, after the mandate was received, for leave to file what was called a 'supplemental bill,' but which was in reality a supplemental answer to the original bill, setting up new defenses growing out of matters occurring since the original decrees. This was properly denied. No discretion was left in that court to grant such a motion. The order of this court was in effect to enter the precise decree which has been made. If, since the original decree, the debts have been paid, or anything else has happened which makes it improper to carry the decree into execution, resort must be had to some form of original proceeding appropriate to relief on that account. It cannot be done by way of defense before decree upon our mandate. The order of this court places the case where it would be if the original decree had been what it is now. It follows that the appeal must be dismissed under the rule, with costs; and it is so ordered.

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