Ex Parte Story v. Story

Mr. Justice Taney delivered the opinion of the Court. In this case, a mandamus has been moved for oq ,behalf of Benjamin Story, to ■ the circuit court for the ninth circujt for the eastern • district of Louisiana. The facts in the case are as follow: ' Edward Livingston, in his *342 lifetime^ filed a bill on thé equity-side-of the district’court for the-eastern district of Louisiana,/against Benjamin Story; and at the hearing*of the éause, the court decided against the complainant, aiid dismissed the bib- This, decree was passed .June 3d, 1838. ■ On the 1st' of October, 1836,' Louise Livingston filed a petition in the. district coUrt, stating.-that Edward Livingston had died after the suit was decided, and-'had’hy 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 E’dward Livingston- was filed with ,this petition,- hy which it appeared that she was the 'sole executrix.■LouiseLivingstpn.was accordingly-permitted’to become a.party, and by her solicitor, appeáred in the district court as’.complainant, in the character of executrix, and appealed to.this Court; where the-cause was heard at Janhary.térm, 1837, and the decree qf the district court reversed, and the .case-sent back, with a‘ mandate from .this Court-to the court -helow, directing the .further proceedings to be had in that court ... It appears by the petition' for the mandataus, (which' is verified by affidavit,) and. by the copy of the record from the court below whiéh accompanies it,that the mandate from this Gourt was filed In the'd.istrict court, March 8d, 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 cáse having been transferred to- the circuit coart, under the-act.of congress creating. additional circuits, the defendant, on the 80th'of November, 1837, obtained á rule on the complainant to show cause why the bill, should not be dismissed, or the suit-abated, upon the ground that Edward Livingston, thé complainant in the original- bill, died before the heáring and decree- in the district court in 1836; and also, because the .suit hadjnot been.-regularly revived by his executrix, the present complainant, and could not. be revived, inasmuch as she claimed as devisee. On the 18th of .December,-1837, the rule abovementioned' 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, b,ut the-court-refused to sign it.- The defendant afterwards prayed leave to file.“a-supplemental answer and plea,” in *343 which he averred that Edward Livingston, the original complainant* died on the 23d of 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 Louisé 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 dhe order-book, but the court refused to suffer any notice to be takén 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 defence 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 defence against, the execution of the mandate; and consequently he was not deprived of any legal' *344 or equitable ground, of- defence 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 the 17th day of February, A U. 1838, for a writ of mandamus in the. nature of a' writ of procede lo, to compel the judge of the circuit coürt of the United States for the eastern district of Louisiana, tó 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.