Where this Court affirmed a decree of a circuit court which was
that a conveyance of property should be executed upon the payment
of a sum of money, and the circuit court proceeded to carry out its
decree by issuing an attachment against the party who refused to
execute such conveyance, an appeal will not lie to this Court from
the order directing the attachment.
The appeal must be dismissed, with costs, on motion.
It was before this Court at a preceding term, and is reported in
59 U. S. 18
How. 508.
When the mandate of this Court went down, the money therein
mentioned was tendered to McMicken, who refused to accept it,
whereupon an order was obtained to attach him for contempt, in
refusing to make the conveyance required by the decree. Whilst in
custody of the marshal, he executed the conveyance, and at the same
time took an appeal from the order to attach.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The defendant, Perin, in the year 1848, being desirous of
purchasing the interests the Fletchers had in a plantation,
with
Page 61 U. S. 134
the improvements thereon, situated in the Parish of East Baton
Rouge, in the State of Louisiana, applied to Charles McMicken, a
relation of his, living in Cincinnati, Ohio, to loan him five
thousand dollars for the purchase, which he agreed to do, and, in
order to secure McMicken, it was agreed that he should take the
title in his own name in trust, on condition that Perin should pay
him the money advanced. And it appears that, under various
pretenses, McMicken sought to hold the plantation as his
property.
A bill was filed by Perin for a specific execution of the
contract, by a conveyance to him on the payment of the five
thousand dollars borrowed.
And after various proceedings were had and testimony examined,
the court decreed that Perin, within six months, shall pay McMicken
the sum of $7,266.30, with interest thereon at the rate of eight
percent, from the date until paid; and, on the payment thereof,
that McMicken shall convey to Perin the undivided three-fourths
part of the plantation aforesaid, in the Parish of East Baton
Rouge. Subsequently, the time for the payment of the money was
extended three months. But this order was afterwards annulled, and
an appeal to the supreme court from the decree was granted.
And afterwards, at the January term, 1857, on filing the mandate
of the Supreme Court of the United States affirming the decree of
the circuit court, and upon showing that a tender had been made of
the sum of money specified in said decree, and the interest
thereon, by said Perin to said McMicken, according to the terms of
the decree, to-wit, the sum of eight thousand seven hundred and
fifty-five dollars, which sum has been deposited in this Court in
satisfaction of said decree by Perin, and upon filing the affidavit
of Perin that McMicken refuses to convey the premises directed by
said decree, the deed being herewith filed, it is therefore ordered
that said defendant, Charles McMicken, do show cause, on Saturday,
the 17th instant, at 10 o'clock A.M., why an attachment should not
issue to enforce compliance with said decree.
On the same day the mandate was entered, and prior to its entry
it was proved, by the affidavit of Perin, that a tender of the
above sum was made to McMicken, which he refused.
In answer to the rule to show cause why an attachment should not
issue against him, various reasons were assigned, all of which were
overruled by the court, and an attachment was ordered to issue to
compel the defendant to execute a conveyance, as directed by the
decree, and further that the defendant should pay the costs of the
rule. From this decision the defendant prayed an appeal to the
supreme court, which
Page 61 U. S. 135
was allowed, and on which bond was given. This is the appeal now
before us, and which a motion is made to dismiss.
By the appeal from the former decree, the time within which the
money was required to be paid was necessarily suspended. But that
decree having been affirmed by the supreme court, and remanded to
the circuit court to be carried into effect, nothing further was
required to be done. The tender and deposit of the money in court
was all that Perin was required to do, to authorize the court to
attach McMicken for a contempt, in refusing to make the conveyance.
This involved no new question or decision, but was the ordinary
means of enforcing the original decree. In no sense was this a
final decree on which an appeal could be sustained. It is, in
effect, the same as ordering an execution on a judgment at law,
which had been affirmed on error, and remanded for execution to the
circuit court. It has been held that an order of sale in execution
of an original decree is not a final decree, on which an appeal
will lie.
Keene v.
Warren, 13 Pet. 439
There are cases in which a second appeal may be taken, but it
must be founded on a procedure subsequent to the original decree,
and in a matter not concluded by it.
This appeal is dismissed, at the costs of
appellant.