A bill of exceptions is altogether unknown in chancery practice,
nor is a court of chancery bound to inscribe in an order book, upon
the application of one of the parties, an order which it may pass
in a case before it.
The court refused to award a mandamus to the district judge of
the District of Louisiana commanding him to sign a bill of
exceptions tendered to him, and to command him to have inscribed,
by the clerk of the court, on the order book of the court, an order
passed by him, in a case which was before him under a mandate from
the Supreme Court of the United States, requiring him to do and to
have done certain matters to carry into effect the decree of the
Supreme Court, in a case which had been brought before the Court of
Appeal from the District of Louisiana.
At the time when a decree was made in the District Court of
Louisiana in a case before it, the complainant was dead. The
executrix was afterwards admitted by the district court to become a
party to the suit, and prosecuted an appeal to the Supreme Court,
where the decree of the district court was reversed on the merits,
and the case was sent back to the district court on a mandate,
requiring the decree of the Supreme Court to be carried into
effect. The decease of the plaintiff before the decree, and his
having left other heirs besides the executrix, was offered, in the
form of a supplemental answer to the original bill, to the district
court, when acting under the mandate of the Supreme Court, to show
error in the proceedings of that court, with a view to bring the
case again before the Supreme Court, in order to have a
reexamination and a reversal of the decree of the court. The
district court refused to permit the evidence of the matters
alleged to be entered on the records of the court or to sign a bill
of exceptions, stating that the same had been offered. The Court
said, in the case of
Skillern's Executors v. Mays
Executors, 6 Cranch 267, it was said
"as it appeared that the merits of the case had been finally
decided in this Court, and that its mandate required only the
execution of the decree, the circuit court was bound to carry that
decree into execution, although the jurisdiction of the court was
not alleged in the pleadings."
In the case now before the court, the merits of the controversy
were finally decided by this Court, and its mandate to the district
court required only, the execution of the decree. On the authority
of this case, the refusal to allow the defendant to file a
supplemental answer and plea, was sustained.
The case of Louise Livingston, executrix of Edward Livingston,
deceased, was before this Court at the January term, 1837, on the
appeal of Mrs. Livingston, as administratrix, against Benjamin
Story from the District Court of the United States for the Eastern
District of Louisiana.
36 U. S. 11 Pet.
351.
Page 37 U. S. 340
The decree of the District Court of Louisiana was reversed and
the case was sent back to that court on a special mandate from this
Court.
Page 37 U. S. 341
MR. JUSTICE TANEY delivered the opinion of the Court.
In this case, a mandamus has been moved for on behalf of
Benjamin Story to the Circuit Court for the Ninth Circuit for the
Eastern District of Louisiana.
The facts in the case are as follow:
Edward Livingston, in his
Page 37 U. S. 342
lifetime, filed a bill on the equity side of the District Court
for the Eastern District of Louisiana, against Benjamin Story, and
at the hearing of the cause, the court decided against the
complainant and dismissed the bill. This decree was passed June 3,
1836. On 1 October, 1836, Louise Livingston filed a petition in the
district court, stating that Edward Livingston had died after the
suit was decided, and had by his will appointed her sole executrix,
and praying leave to make herself a party, in order to appeal to
this Court. A copy of the will of Edward Livingston was filed with
this petition by which it appeared that she was the sole executrix.
Louise Livingston was accordingly permitted to become a party, and
by her solicitor, appeared in the district court as complainant in
the character of executrix, and appealed to this Court; where the
cause was heard at January term, 1837, and the decree of the
district court reversed, and the case sent back, with a mandate
from this Court to the court below, directing the further
proceedings to be had in that court.
It appears by the petition for the mandamus (which is verified
by affidavit) and by the copy of the record from the court below
which accompanies it that the mandate from this Court was filed in
the district court March 2, 1837, and proceedings were accordingly
had under the orders of the district court to carry into execution
the directions contained in the mandate. Afterwards, the case
having been transferred to the circuit court under the act of
Congress creating additional circuits, the defendant, on 20
November, 1837, obtained a rule on the complainant to show cause
why the bill should not be dismissed or the suit abated upon the
ground that Edward Livingston, the complainant in the original
bill, died before the hearing and decree in the district court in
1836, and also because the suit had not been regularly revived by
his executrix, the present complainant, and could not be revived
inasmuch as she claimed as devisee. On 18 December, 1837, the rule
above-mentioned was discharged and the testimony offered to prove
the facts alleged as the foundation of the rule rejected by the
court. The defendant, on the day last mentioned, further moved that
he be permitted to give evidence that Edward Livingston had left
other heirs besides Mrs. Louise Livingston, which motion was also
overruled by the court.
The defendant thereupon tendered a bill of exceptions to these
opinions, but the court refused to sign it. The defendant
afterwards prayed leave to file "a supplemental answer and plea"
in
Page 37 U. S. 343
which he averred that Edward Livingston, the original
complainant, died on 23 May, 1836, which was some days before the
decree of the district court dismissing his bill, and also averred
that he left a daughter who was still living and had an interest in
the subject matter in controversy, and plead the death of said
Edward Livingston in abatement of the proceedings, and further
insisted that the suit had never been revived by Louise Livingston,
who appears as complainant, and that the daughter of Edward
Livingston was a necessary party and that the court could not
entertain jurisdiction because she was not a party. The court
refused to receive this answer or to permit it to be filed. The
defendant thereupon tendered another bill of exceptions, which the
court refused to sign. The defendant then moved the court to direct
the clerk to state the facts upon the order book, but the court
refused to suffer any notice to be taken on the record of this
proposition to file the supplemental answer and plea, and a
mandamus is now moved for to compel the judge to sign the
exceptions, and to correct the record so as to make the answer
which defendant proposed to file and the refusal of the court to
receive it appear on the record as a part of the proceedings.
We think there is no sufficient grounds for this application. A
bill of exceptions is altogether unknown in chancery practice; nor
is a court of chancery bound to inscribe in an order book, upon the
application of one of the parties, an order which it may pass in a
case before it, and the facts which the defendant stated in the
supplemental answer and plea which he offered furnished no ground
of defense in the circuit court when acting under the mandate of
this Court and carrying its directions into execution. In the case
of
Skillern's Executors v. May's
Executors, 6 Cranch 267, this Court said that as it
appeared that the merits of the case had been finally decided in
this Court, and that its mandate required only the execution of its
decree, the circuit court was bound to carry that decree into
execution although the jurisdiction of the court was not alleged in
the pleadings. In the case now before the Court, the merits of the
controversy were finally decided by this Court and its mandate to
the district court required only the execution of its decree. The
case therefore comes within the principle of
Skillern's
Executors v. May's Executors, and the facts stated by the
defendant cannot, in this stage of the proceedings, form any
defense against the execution of the mandate, and consequently he
was not deprived of any legal
Page 37 U. S. 344
or equitable ground of defense by the refusal of the court to
suffer him to file the supplemental answer and plea which he
offered.
The motion for the rule to show cause is therefore
Refused.
On motion for a mandamus to the judge of the Circuit Court of
the United States for the Eastern District of Louisiana. On
consideration of the motion made in this case by Mr. Crittenden, on
a prior day of the present term of this Court, to-wit: on Saturday,
17 February, A.D. 1838, for a writ of mandamus in the nature of a
writ of procedendo to compel the judge of the Circuit Court of the
United States for the Eastern District of Louisiana to sign the
bill of exceptions tendered to him by the counsel for the appellee
in this cause and to permit the record of the case "to speak the
truth" and of the arguments of counsel thereupon had as well in
support of as against the motion, it is now here ordered and
adjudged by this Court that the said motion be, and the same is
hereby overruled.
