1. This Court will consider on a second appeal only the
proceedings subsequent to its mandate. The reexamination cannot
extend to anything decided on the first appeal.
2. Where a stipulation to abide and answer the decree of a
district court in a case in admiralty is, with the consent of the
parties, substituted for the stipulation previously filed by a
claimant, it thereby becomes the only stipulation for value, and
does not become inoperative upon an appeal to the circuit court.
The appeal carries up the whole fund.
This is an appeal from the decree of the court below in the
execution of the mandate of this Court in The Lady
21 Wall. 1, where the former decree was
reversed and the cause remanded for further proceedings in
conformity with the opinion.
Page 96 U. S. 462
The facts are stated and the assignment of errors set out in the
opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Second appeals will lie in certain cases where it is alleged
that the mandate of the appellate court had not been properly
executed, but the appeal in such a case will bring up nothing for
reexamination except the proceedings subsequent to the mandate.
Needful explanations may be derived from the original record, but
the reexamination cannot extend to anything that was decided in the
antecedent appeal. Sibbald v. United
12 Pet. 488; Santa
10 Wheat. 431; Roberts v.
20 How. 466.
Wheat to a large amount had been delivered by the shipper
Page 96 U. S. 463
to the steamer named in the record, to be transported from the
port of shipment down the river to the port of destination.
Pursuant to usage, the wheat was stored in a barge connected with
the steamer, and the barge, with two others similarly laden, was
taken in tow by the steamer, which furnished the motive power for
the whole craft. Prior to the commencement of the voyage, the owner
of the wheat insured the same, and during the trip down the river,
the barge containing the wheat collided with a bridge pier in the
river and was sunk, and the barge with her cargo became a total
Contest arising as to who was responsible, the insurance
companies paid the loss and filed a libel against the steamer and
the barge containing the wheat upon the ground that the loss was
occasioned by the fault of those in charge of the motive power.
Service was made by attaching the steamer, and certain other
proceedings took place not necessary now to be noticed except to
say that an appearance was entered, and that the steamer was
discharged upon a stipulation for value. Proofs were taken, and the
district court, after hearing the parties, entered a decree
dismissing the libel. Hearing was again had in the circuit court on
appeal, and the circuit court entered a decree affirming the decree
of the district court. Prompt appeal was then taken by the
libellants to this Court, where the decree of the circuit court was
reversed with costs and the case remanded with directions to enter
a decree for the libellants and for further proceedings to be had
therein in conformity with the opinion of this Court.
The Lady Pike,
21 Wall. 1.
Due record of the mandate having been made and execution for the
costs of this Court having been issued, the circuit court sent the
cause to a master to ascertain and report the amount the libellants
were entitled to recover. Without unnecessary delay, the master
made his report, which was subsequently duly confirmed, and the
circuit court entered a final decree, in pursuance of the mandate
of this Court, that the libellants do have and recover of the
claimants, Ephraim G. Pearce and William Knight, and William F.
Davidson and Peyton S. Davidson, their stipulators, the sum of
$13,190.40, the amount reported by the master, with costs of suit.
Whereupon Christopher G. Pearce,
Page 96 U. S. 464
William Knight, William F. Davidson, and Peyton S. Davidson
appealed to this Court, which is the second appeal in the case now
under consideration, and they assign for error the following
causes, in substance and effect:
1. That the circuit court erred in not entering a final decree
against Henry Lourey, as owner of the steamer, and his stipulator
in the stipulation which he as claimant filed for the value of the
2. That the circuit court erred in entering the final decree
against the parties therein named as exhibited in the record.
3. That the circuit court erred in entering the decree against
the parties named in the decree, because their stipulation only
bound them to abide and answer the decree of the district
4. That the circuit court erred in not entering a final decree
against the claimants of the barge.
5. That the circuit court erred in entering a final decree
against Ephraim G. Pearce.
Two of the errors assigned, to-wit the first and the second, may
conveniently be considered together as they involve very largely
the same considerations.
Notices in due form to all persons claiming to own the steamer
were regularly posted by the marshal at the same time that he
attached the steamer under the monition of the district court, and
the record of that court shows that Henry Lourey appeared in the
same court as claimant and gave a stipulation with surety in the
sum of $10,000 conditioned that the claimant should abide and
answer the decree of the court where the stipulation was given.
Counsel subsequently appeared, and on his motion the time was
extended to file an answer.
Delay ensued, and on the 2d of February following, Christopher
G. Pearce, William W. Hanley, and William Knight, owners of the
steamer, &c., intervened for their interest and filed their
answer and claim. Their claim was limited to the steamer, but the
Western Union Railroad Company intervened at the same time as
owners of the barge and joined in the same answer and claim.
Six days later it was ordered by the court, on motion of the
proctor for the claimants, that the stipulation filed at that time
in the sum of $16,000 be substituted for and be in lieu of the
Page 96 U. S. 465
stipulation previously filed, and that the one previously filed
be returned to the surety on the same.
Suffice it to say, without copying the instrument, that Ephraim
G. Pearce and William Knight are therein described as the claimants
of the steamer, and William F. Davidson and Peyton S. Davidson bind
themselves, their heirs, executors, and administrators in the sum
of $16,000 unto the libellants that they shall abide and answer the
decree of the said court in the aforesaid cause.
Substituted as the instrument was for the prior one, which was
given as a stipulation for value, it unquestionably became the
operative, and the only operative, stipulation for value. Both
parties concede that the prior stipulation was a stipulation for
value, and that it was all the security the libellants had for
compensation in case they prevailed in the suit. Power to change
one stipulation for another where the parties consent is clearly
vested in the district court in such a case, and inasmuch as the
substitution was made in this case on motion of the proctor of the
claimants, it surely does not lie with them to interpose any such
objection -- certainly not at this stage of the litigation.
Nor is it necessary to inquire whether the libellants might or
might not have objected at the time, as it is clear that no such
objection would be of any avail in an appellate court if not made
in the court of original jurisdiction. Through their proctor, the
present claimants moved that the stipulation in question be
substituted for the one previously filed, and the court made the
order in pursuance of the motion of their proctor, and it was in
accordance with the same motion that the prior stipulation was
surrendered to the surety who gave it, and if the theory of the
claimants must prevail, the libellants are without any security
whatever, as the vessel was discharged from attachment when the
first stipulation for value was filed.
Viewed in the light of these suggestions, it is clear that the
first and second assignments of error must be overruled.
2. Nor is there any greater merit in the third assignment of
error, which assumes that the stipulation became inoperative when
the case was appealed to the circuit court. Instead of that, the
rule is universal that an appeal from the district
Page 96 U. S. 466
court to the circuit court carries up the whole fund, which in
this case consisted only of the stipulation for value and the
appeal bond, as the record does not show that any stipulation for
costs was given in the district court. Where the appeal is from the
circuit court to this Court, the fund remains in the custody of the
circuit court, but the mandate of the supreme court is sent down
and there operates upon the fund sent up from the district court,
just the same as if the execution had been issued there without any
appeal to this Court, which is sufficient to show that the third
assignment of error cannot be sustained.
3. Service was not made upon the barge, and, of course, there
could not be any final decree against her owners, which is all that
need be said in response to the fourth assignment of error.
4. Other defenses failing, it is insisted that the court erred
in entering a decree against Ephraim G. Pearce, which it is
understood means that the decree should have been against the
appellant, Christopher G. Pearce, and not against the person who
signed the stipulation. During the argument, it seemed to be
conceded that there is no such person as Ephraim G. Pearce; that it
is merely a mistake as to the Christian name, made by the attorney
who affixed the appellant's name to the stipulation; and, if so, it
is quite too late for the party to interpose that objection on a
second appeal in this Court, in a case where no excuse is shown for
not having taken steps to have the correction made in the court
where his attorney made it. Nothing of the kind was suggested when
the cause was here before, and nothing appears to warrant the
conclusion that the attention of the district or circuit court was
called to it before the first appeal.