A judgment for damages and costs was recovered is a circuit
court of the United States, on bonds and coupons issued by a
municipal corporation. In answer to an alternative writ of mandamus
issued three and one-half years afterwards for the levy of a tax to
satisfy the judgment, it was set up in bar that the original
judgment was void because the circuit court had no jurisdiction of
the subject matter of the action on the
Page 132 U. S. 211
ground that the bonds were not payable to order or bearer. A
peremptory writ was granted by a judgment, to review which a writ
of error was taken. A motion to dismiss the writ was made, united
with a motion to affirm.
(1) Although there was no ground for contending that this Court
had no jurisdiction, yet the reasons assigned for taking the writ
of error were frivolous, and it was taken for delay only.
(2) The principal of the bonds was payable to bearer.
(3) The judgment ought to be affirmed.
(4) The proceeding by mandamus being in the nature of execution,
if the prosecution of writs of error to the execution of process to
enforce judgments were permitted when no real ground existed
therefor, such interference might become intolerable, and this
Court in the exercise of its inherent power and duty to administer
justice ought, independently of subdivision 6 of Rule 6, to reach
the mischief by affirming the action below.
(5) No different interpretation is put on that subdivision from
that which has hitherto prevailed.
The plaintiff in error moved the court
"to grant such order, writ or mandate as may be fit and proper
to secure to plaintiff in error a stay of the peremptory writ of
mandamus heretofore issued by the court below, and to secure
plaintiff in error the supersedeas to which plaintiff in error is
entitled under the statute."
The defendant in error moved to dismiss the writ of error under
Rule 6, and to affirm the judgment below. The two motions were
heard together. The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
Wilbur F. Trader recovered a judgment in the Circuit Court of
the United States for the District of Kansas against the City of
Chanute on the 4th of December, 1885, for $7,702.12, damages and
costs, on certain bonds and coupons
Page 132 U. S. 212
issued July 1, 1872, by the City of Tioga. Each bond stated that
the City of Tioga was
"indebted to the Tioga Flouring Mill Company in the sum of five
hundred dollars, lawful money of the United States, with interest
from the date hereof at the rate of ten percent per annum, as
provided by law and payable semiannually, as per interest coupons
hereto attached, the principal being due in ten years from date
hereof, and with the interest thereon payable at the office of the
Farmers' Loan and Trust Company in the City of New York to the
On the 27th of July, 1888, Trader served a notice on the city of
Chanute, addressed to the mayor and councilmen of the city,
requesting them to levy a tax on the taxable property within the
city to pay and satisfy the judgment. It does not appear that any
execution has been issued on the judgment.
On the 9th of July, 1889, Trader applied to the circuit court
for a writ of mandamus requiring the officers of the city to levy a
tax to satisfy the judgment. An alternative writ was issued on that
day. In answer to the writ, the city set up by way of plea in bar
that the original judgment was void because the circuit court had
no jurisdiction of the subject matter of the action, as appeared
from the petition in it, which set forth a copy of one of the bonds
sued on. The point urged was that the bond was not payable to the
Tioga Flouring Mill Company or order, nor to bearer, and that only
the interest was payable to the bearer.
On a hearing on the writ and return, the circuit court, on
October 14, 1889, rendered a judgment granting a peremptory writ
commanding the officers of the city to levy the tax. A bill of
exceptions was allowed, and the city has brought a writ of error.
The defendant in error now moves to dismiss the writ of error, and
unites with it a motion to affirm the judgment.
Subdivision 5 of Rule 6 of this Court (108 U.S. 575) was first
promulgated November 4, 1878, 97 U.S. vii. It reads as follows:
"There may be united with a motion to dismiss a writ of error or
appeal a motion to affirm on the ground
Page 132 U. S. 213
that although the record may show that this Court has
jurisdiction, it is manifest the appeal or writ was taken for delay
only, or that the question on which the jurisdiction depends is so
frivolous as not to need further argument."
At the same term, in Whitney v. Cook, 99 U. S.
, this Court, speaking by Chief Justice Waite, said
that the rule implied that there should appear on the record "at
least some color of right to a dismissal." He added:
"Our experience teaches that the only way to discourage
frivolous appeals and writs of error is by the use of our power to
award damages, and we think this a proper case in which to say that
hereafter more attention will be given to that subject, and the
rule enforced both according to its letter and spirit. Parties
should not be subjected to the delay of proceedings for review in
this Court without reasonable cause, and our power to make
compensation to some extent for the loss occasioned by an
unwarranted delay ought not to be overlooked."
The practice of not entertaining a motion to affirm unless there
is some color of right to a dismissal, has since been frequently
sustained by this Court. Hinckley v. Morton, 103 U.
; SchoolDistrict of Ackley v. Hall,
106 U. S. 428
Davies v. Corbin, 113 U. S. 687
Walston v. Nevin, 128 U. S. 578
New Orleans v. Construction Co., 129 U. S.
; The Alaska, 130 U.
In Micas v. Williams, 104 U. S. 556
there was a motion to affirm united with a motion to dismiss a writ
of error. The affidavits in opposition to the latter motion showed
jurisdiction as to the amount involved, though on the record as it
stood when the motion was made there was color of right to a
dismissal. But the Court affirmed the judgment on the ground that
the writ was taken for delay only.
In The S. C. Tryon, 105 U. S. 267
there was a motion to affirm a decree united with a motion to
dismiss the appeal in an admiralty suit. The ground for making the
motion to dismiss was that there was no bill of exceptions, but
only a finding of facts and conclusions of law. The Court overruled
that ground, but it is difficult from the report of the case to see
what color of right there was to a dismissal; yet
Page 132 U. S. 214
it affirmed the decree on a consideration of the findings of
In Swope v. Leffingwell, 105 U. S.
, there was a motion to affirm united with a motion to
dismiss a writ of error to a state court. The motion to dismiss was
made on the ground that there was no federal question involved. The
Court held that it had jurisdiction, but affirmed the judgment on
the ground that the case on the merits was governed by previous
In the present case, there does not appear to be any ground for
contending that this Court has no jurisdiction, yet we are entirely
satisfied that the reasons assigned for taking the writ of error
are frivolous, and that it was taken for delay only. The principal
of the bonds is payable to bearer as well as the interest. The
principal is stated to be due in ten years, and, with the interest,
to be payable to the bearer. This is too plain for discussion, and
disposes of the point that the original payee in the bonds was a
citizen of Kansas, and thus of the same state with the debtor, and
could not have sued on the bonds in the circuit court, and so the
plaintiff could not.
But without putting a different interpretation on subdivision 5
of Rule 6 from that which has hitherto prevailed, we are of opinion
that the judgment in the present case must be affirmed. A
proceeding by mandamus to compel the levy of a tax to pay a
judgment is in the nature of execution. The rights of the parties
to the judgment in respect of its subject matter were fixed by its
being rendered. If the prosecution of writs of error to the
execution of process to enforce judgments is permitted when no real
ground exists therefor, such interference might become intolerable.
This Court, in the exercise of its inherent power and duty to
administer justice, ought, independently of subdivision 5 of Rule
6, to reach the mischief by affirming the action below This is a
proper case for doing so.