A judgment of a Circuit Court to which a writ of error had been
sued out, with a supersedeas bond given, being affirmed here and
remanded to the trial court in the usual way., that court, on
motion, summoned in the sureties, and, although they proposed to
interpose a plea of partial payment, proceeded to render judgment
against them and the principal for the full amount of the original
judgment with interest and costs. An appeal to the circuit court of
appeals having been dismissed for nonjoinder of the original
defendant, they applied to this Court for a writ of mandamus
commanding the court below to vacate its judgment insofar as it was
rendered against the sureties and to execute the mandate by
entering judgment and ordering execution against the principal
only.
Held that that judgment was rendered in the exercise
of judicial determination, and not in the discharge of a
ministerial duty, and that the petitioners' remedy, if they deemed
themselves aggrieved, was by writ of error.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The Third National Bank of Chattanooga recovered a money
judgment in the Circuit Court of the United States for the Northern
District of Alabama against Eugene C.
Page 149 U. S. 193
Gordon, April 14, 1888, to reverse which Gordon sued out a writ
of error from this Court, giving a supersedeas bond in the usual
form, with Milton Humes and C. C. Harris as sureties thereon. March
21, 1892, the judgment of the circuit court was affirmed by this
Court, and the mandate was thereafterwards issued in the usual
form. On the 12th of October, 1892 at a regular term of the circuit
court, the bank made a motion upon notice for judgment against the
defendant Gordon and his sureties. To this motion Humes and Harris
appeared and filed a demurrer, which was overruled, and they then
proposed to interpose a plea of partial payment, which the court
refused to permit to be filed, or to hear any evidence upon that
subject, whereupon, without any other evidence than the supersedeas
bond and the mandate of this Court, the circuit court rendered
judgment against Gordon, Humes, and Harris for the principal,
interest, and costs, as shown in the original judgment. To this
judgment Humes and Harris prosecuted a writ of error from the
circuit court of appeals, which dismissed the writ because Gordon
did not join in it and there was no summons and severance, or
equivalent proceeding.
Hardee v. Wilson, 146 U.
S. 179;
Mason v. United States, 136 U.
S. 581.
Thereupon Humes and Harris applied to this Court for leave to
file a petition for writ of mandamus, and for a rule requiring the
judge of the circuit court to show cause why he should not be
commanded to execute the mandate of this Court by vacating the
judgment insofar as it was rendered and directed execution against
petitioners, and to enter judgment and direct execution against the
defendant Gordon, without more. Leave was granted to file the
petition, and a rule was entered thereon accordingly, to which
return has been duly made. The judgment rendered by the circuit
court recites that it appears to the satisfaction of the court that
judgment was recovered against Gordon, a writ of error sued out,
and a supersedeas bond given, and further, from an inspection of
the mandate of this Court, that that judgment was affirmed,
"and the said cause remanded, with directions to this Court to
take such further proceedings in said case as right
Page 149 U. S. 194
and justice and the laws of the United States direct, in
accordance with the opinion of the said Supreme Court;"
and judgment was then given, as before stated, against Gordon,
Humes, and Harris.
We are of opinion that this application must be denied. The
argument for petitioners is that the circuit court was proceeding
wholly in execution of our mandate, that in doing so, the judgment
rendered went beyond its requirements, and that therefore
petitioners are entitled to the remedy by mandamus to correct
action in excess of the jurisdiction of the court below.
In re
Washington & Georgetown Railroad, 140 U. S.
91;
Gaines v. Rugg, 148 U.
S. 228. But, without considering or determining any
other question, it is sufficient to observe that these petitioners
were not parties to the original judgment or to the writ of error,
and were not so concerned in the execution of the mandate as to be
entitled to ask for a review of the action of the circuit court in
that regard by mandamus. The judgment against them was rendered in
the exercise of judicial determination, and not in the discharge of
a ministerial duty, and their remedy, if they deem themselves
aggrieved, lies in a writ of error.
Ex Parte Flippin,
94 U. S. 348.
Writ denied.