Guaranty Trust Co. of New York v. International Steam Pump Co.

HOUGH, Circuit Judge (after stating the facts as above). We do-not find it necessary, nor even possible, now to consider the alleged [921] lack of power in the trial court to award costs and disbursements or either, contingent upon the fate of an appeal on the merits. The case being in equity and costs within discretion, that discretion was exercised in a manner plainly expressed in the decree of foreclosure from which this intervener appealed. If discretion was abused, if the action of the court was erroneous for any reason, it was just as wrong and as plainly wrong the moment foreclosure decree was entered as it is now. The only difference between the present situation and that existing when the case was here before is that we are now informed of the amounts awarded as costs, instead of knowing merely that some amounts would be awarded. The principle has not changed; the details (i. e., the exact figures) are not and never have been complained of. Under such circumstances we hold it plain, upon mere statement, that the act of the lower court now alleged as error had been committed and was expressed in a formal decree from which an appeal was taken and lost, by the present appellant, more than a year ago. It was pas-sible for and incumbent upon the intervener to urge his objections, if any, on the previous appeal; for every question which might have been then raised in opposition to the decision then appealed from must now be held res adjudicata between the parties. Burns v. Cooper, 153 Fed. at 151, 82 C. C. A. 300, per Van Devanter, J. The principle of the rule as to conclusiveness of appellate decisions upon all matters which might have been litigated upon a given appeal is the same as that often announced in this court as to the conclusiveness of judgments of other competent tribunals. Landon v. Bulkley, 95 Fed. 344, 37 C. C. A. 96: Straus v. American, etc., Ass’n, 201 Fed. 306, 119 C. C. A. 544; Old Dominion, etc., Co. v. Lewisohn, 202 Fed. 178, 120 C. C. A. 392. The question here sought to be raised having (as between these parties) passed in rem judicatam, the appeal is dismissed, with costs.