Mason v. Pewabic Mining Co.
153 U.S. 361 (1894)

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U.S. Supreme Court

Mason v. Pewabic Mining Co., 153 U.S. 361 (1894)

Mason v. Pewabic Mining Company

No. 1041

Argued April 26-27, 1894

Decided May 14, 1894

153 U.S. 361

Syllabus

This Court has no jurisdiction over an appeal from a judgment of a circuit court denying the application of counsel for a solicitor's allowance out of a fund realized from a sale made under direction of that court in execution of a mandate of this Court, the appeal being taken after July 1, 1891, and not being taken under the provisions of § 5 of the Judiciary Act of March 3, 1891, c. 517.

When a mandate of this Court has been misconstrued or disregarded by a circuit court, the proper remedy now is by mandamus, but in this case, the circuit court was at liberty to consider the application for an allowance, and its action in that regard was open to review in the circuit court of appeals.

On March 31, 1884, some of the stockholders of the Pewabic Mining Company, on behalf of themselves and all others who might desire to join therein, filed their bill in the Circuit Court of the United States for the Western District of Michigan, against that company, its directors, and a new corporation, called the Pewabic Copper Company, formed for the purpose of acquiring the property of the mining company, seeking to have the property disposed of at public sale, and an accounting by the directors. The circuit court decreed a sale, but denied the accounting. The case was brought to this Court on cross-appeals, and the decree affirmed, except in respect of the accounting, as to which the decree was reversed, and a reference directed. Mason v. Pewabic Mining Co.,133 U. S. 50. The case was decided in this Court January 13, 1890, and, the mandate having gone down, the circuit court rendered a decree May 6, 1890, ordering a reference, report, and sale by auction. February 3, 1891, the special master filed his report of sale, which was confirmed. On March 3, one Marcus filed an intervening petition to set aside the confirmation and open the sale, which was denied April 27, 1891, and the petition

Page 153 U. S. 362

dismissed, whereupon Marcus appealed to this Court, which affirmed the order. Marcus v. Mason,145 U. S. 349.

February 28, 1893, counsel filed a petition for an allowance out of the amount realized on the sale, to which an answer was filed, and the petition denied, whereupon an appeal was prosecuted to this Court. In the opinion of the circuit court, appearing in the record, it is said:

"The other matter which remains to be disposed of is the petition for an allowance out of the fund in favor of the solicitors for the complainants upon the footing of what are known as costs between solicitors and clients."

"A preliminary question arises in regard to the power of the court, proceeding, as it is, under the mandate of the supreme court, which contains the order of that court in regard to costs. This was to the effect that the complainants should recover their costs in the circuit as well as in the supreme court. These, of course, must be understood to be the usual taxable costs."

"It would seem clear that this Court has no authority to supplement that order by awarding a sum, to be determined by its discretion, as costs to be taxed as between party and party, but which are really an indemnity for the expense of carrying on the suit against a perverse and unreasonable defense, as was done in Perring v. Lepper, 72 Mich. 457, and Mackintosh v. Flint & Pere Marquette Railroad, a case reported in 34 F. 582 (though not on this point, which latter appears from the record), cited in support of this petition."

"This Court is not now proceeding upon its original authority in regard to any matters which were or might have been dealt with by the supreme court on the appeal from the original decree. The subject of costs was included in the mandate, which we are now executing. Perkins v. Fourniquet, 14 How. 328; In re Washington & Georgetown Railroad,140 U. S. 91; Gaines v. Rugg,148 U. S. 228, 148 U. S. 239."

"There is some analogy, though it is not complete, between the equity for such costs, and costs between solicitor and client, which are paid out of a fund in court. I have some doubt whether this court retains the power to award the latter

Page 153 U. S. 363

species of costs, but I express no opinion upon this question, as it seems to me clear that this is not a case in which they could properly be allowed. "

Page 153 U. S. 365

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