CITY NAT BANK OF FORT WORTH v. HUNTER 152 U.S. 512 (1894)

In Bank v. Hunter, 129 U.S. 557, 579 , 9 S. Sup. Ct. 346, will be found a full history of the litigation between the parties to the present appeal. The final decree was reversed, with costs, and the case was remanded, with directions to proceed in conformity with the opinion of this court. After the mandate and opinion of this court had been filed in the court below, the cause was again heard, and it was, among other things, adjudged: 'That said complainants, R. D. Hunter, A. G. Evans, and R. P. Buel, do have and recover of and from the defendants, the City National Bank of Ft. Worth, the sum of twelve thousand nine hundred and eighty-four and 85-100 (12,984. 85) dollars, together with interest thereon from this date at the rate of eight per cent. per annum. It is further ordered, adjudged, and decreed that all costs accrued in this cause up to September 30, 1881, be, and the same are hereby, adjudged against said complainants, R. D. Hunter, A. G. Evans, and R. P. Buel, and for which let execution issue; and, as the costs of the supreme court have been allowed against said complainants, all other costs incurred herein, which have not been otherwise adjudged, be, and the same are hereby, adjudged against said defendant, the City National Bank of Ft. Worth.'

From this decree the present appeal was prosecuted by the bank. The errors assigned are: (1) The court gave interest on the plaintiffs' portion of the fund to be divided; (2) costs were awarded against the defendant bank. [152 U.S. 512, 513]   A. H. Garland and Heber J. May, for appellant.

[152 U.S. 512, 514]   H. M. Pollard, for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

1. It is contended that the decree below, so far as it included interest in favor of the appellees, was not in conformity with the opinion of this court, and for that reason should be reversed. The claim is that such interest was 'nearly or quite $4,000.' In that view, has this court jurisdiction, upon appeal, to review the last decree?

In support of our jurisdiction, counsel rely upon Perkins v. Fourniquet, 14 How. 328. In that case it was claimed that the decree appealed from exceeded what was allowed upon a previous appeal by a sum larger than was necessary to give this court jurisdiction, and the question arose whether the alleged error could be reached by an appeal from the last decree. Chief Justice Taney, speaking for this court, said: 'This objection to the form of proceeding involves nothing more than a question of practice. The man date from this court left nothing to the judgment and discretion of the cir- [152 U.S. 512, 515]   cuit court, but directed it to carry into execution the decree of this court, which was recited in the mandate. And if the decree of this court has been misunderstood or misconstrued by the court below, to the injury of either party, we see no valid objection to an appeal to this court in order to have the error corrected. The question is merely as to the form of proceeding which this court should adopt to enforce the execution of its own mandate in the court below. The subject might, without doubt, be brought before us upon motion, and a mandamus issued to compel its execution. But an appeal from the decision of the court below is equally convenient and suitable, and perhaps more so in some cases, as it gives the adverse party notice that the question will be brought before this court, and affords him the opportunity of being prepared to meet it at an early day of the term.' This principle was affirmed in Railroad Co. v. Soutter, 2 Wall. 440, 443, and recognized in Re Washington & G. R. Co., 140 U.S. 92, 95 , 11 S. Sup. Ct. 673.

The case cited would sustain the present appeal as an appropriate mode for raising the question above stated if the amount now in dispute was sufficient to give this court jurisdiction to review the last decree. Under the statutes regulating the jurisdiction of this court at the date of the decision in Perkins v. Fourniquet, the amount there in dispute was sufficient for an appeal. But that case does not sustain the broad proposition that, without reference to the value of the matter in dispute, an appeal will lie from a decree, simply upon the ground that it is in violation of or a departure from the mandate of this court. While compliance with a mandate of this court, which leaves nothing to the judgment or discretion of the court below, and simply requires the execution of our decree, may be enforced by mandamus, without regard to the value of the matter in dispute, we cannot entertain an appeal if the value of the matter in dispute upon such appeal is less than $5,000. Nashua & L. R. Corp. v. Boston & L. R. Corp., 5 U. S. App. 97, 100, 2 C. C. A. 542, 51 Fed. 929.

2. If the sum in dispute on this appeal was sufficient to give us jurisdiction, we could consider the question of costs, [152 U.S. 512, 516]   referred to in the second assignment of error; but, as the appeal in respect to interest must be dismissed for want of jurisdiction, the appeal in respect to costs must also be dismissed. No appeal lies from a mere decree for costs. Canter v. Insurance Co., 3 Pet. 307, 319; Wood v. Weimar, 104 U.S. 786 ; Paper Bag Cases, 105 U.S. 766 .

The appeal is dismissed.

Mr. Justice WHITE, not having been a member of the court when this case was argued, took no part in its decision.