United States ex rel. Tongue & Yellowstone River Irr. Dist. v. United States Dist. Court for Dist. of Montana

GIUBERT, Circuit Judge (after stating the facts as above). [1] It is the contention of the relators that the District Court by its order of July 28, 1920, did change, amend, and modify the decretal parts of the final decree which was affirmed by this court. Referring lo the original contract between the parties, we find that it provided that, if the purchase price be paid in bonds, “the bonds are to be received by the party of the first part at par value and accrued interest at the time of delivery.” The contract also provided that the irrigation district might retain a sufficient number of the bonds necessary to complete the work contracted to be done on the plant by Jordan. The original decree'determined that $25,000 would be sufficient to complete the work, and directed that $25,000 should be retained by the district in lieu of performance of the work by Jordan, and should be deducted from the purchase price. The decree directed that the irrigation district mi girt detach from said bonds a sufficient number of the first maturing coupons thereon to equal the sum of $25,000. It did not direct that the coupons-so to be dclached should be a sufficient number thereof which, with interest added thereto, should equal the sum of $25,000. If such had been the intention, it is but reasonable to assume that it would have been expressed in the decree. The same may be said of the provision that the district might detach from the coupons next maturing on said bonds the sum oE 014,626.71. In entering a decree on the mandate of this court the District Court was of the opinion that, inasmuch as the plaintiff was entitled to payment at the time when payment became due, the district was obligated to make the- complainant whole by paying interest upon the coupons at the conceded rate of 6 per cent, per annum from maturity to the time of the decree. In so ruling the District Court applied principles of equity to the adjustment of the rights of the parties, but in doing so, we think, acted without authority. There was no provision in the original decree that the plaintiff should receive interest on the amounts due him. In Boyce v. Grundy, 9 Pet. 275, 9 L. Ed. 127, it was held, in view of Judiciary Act 1789, § 23, 1 Slat. 85 (later embodied in section 1010, Rev. Stats. [Comp. St. § 1671]), which authorized the Supreme Court in cases of affirmance of any judgment or decree, to award the respondent just damages for his delay, that an affirmance by the Supreme Court of a decree in equity without the allowance of interest or damages, was equivalent to a denial of any interest or damages thereon. Referring to the allowance of interest by the Circuit Court on receipt: of the mandate from the Supreme Court, the latter court said: “A decree of tho Circuit Court, allowing interest in such a case, is, to all intents and purposes, quoad hoc, a new decree, extending the former'decree,” In Re Washington & Georgetown Rd. Co., 140 U. S. 91, 11 Sup. Ct. 673, 35 L. Ed. 339, the court said: [614] “We do not consider the question as to whether interest was allowable by law, or rule, or statute, on the original judgment of the special term, or whether it would have been proper for the special term, in rendering the judgment, or otherwise, to have allowed interest upon it, or whether it would have been proper for the general term to do so; but we render our decision solely upon the point that, as neither the special term nor the general term allowed interest on the judgment, and as this court awarded no interest in its judgment of affirmance, all that the general term could do, after the mandate of this court went down, was to enter a judgment carrying out the mandate according to its terms, and simply affirming the prior judgment of the general term, and directing execution of the judgment of the special term of December 18, 1885, with costs, and without interest.” In Green v. Chicago S. & C. R. Co., 49 Fed. 907, 1 C. C. A. 478, the Court of Appeals for the Sixth Circuit, following the decisions above cited, held that when a judgment for money which does not award interest is affirmed without the question of the interest being raised, such a decree is to be taken by the lower court as a declaration that no interest is to be allowed. This court made a similar ruling in Hagerman v. Moran, 75 Fed. 97, 21 C. C. A. 242, and to the same effect are The Glenochil (D. C.) 128 Fed. 963, and Consolidated Rubber Tire Co. v. Diamond Rubber Co. (D. C.) 232 Fed. 508. Counsel for the respondent rely upon In re City Bank, Petitioner, 153 U. S. 246, 14 Sup. Ct. 804, 38 L. Ed. 705, a case in which it was alleged that the Circuit Court, on a mandate from the Supreme Court in the case of City Bank v. Hunter, 129 U. S. 557, 9 Sup. Ct. 346, 32 L. Ed. 752, had entered a decree in disobedience to the mandate. But that case is plainly distinguishable from this. It was not a case of the affirmance of a judgment of the Circuit Court. It was a case in which a cause was remanded by the Supreme Court, with instructions to proceed in conformity with its opinion, and to ascertain and determine the proportions of a fund to be distributed among the parties to the suit. In pursuance of the mandate the Circuit Court entered a decree that one of the parties to the litigation recover a specified amount with interest thereon from the date of the decree. In the opinion on mandamus (In re City Bank, Petitioner, 153 U. S. 251, 14 Sup. Ct. 805, 38 L. Ed. 705) it was said: “We are of opinion that whether or not the proceeds of the cattle were received and retained by the bank under such circumstances as to render it liable to Hunter & Co. for interest on their pro rata share was a matter which was necessarily so far left at large by our former decree that we cannot hold that the mandate was disregarded by the decree rendered thereunder by the Circuit Court.” In the present case nothing was “left at large.” The language of this court's mandate was— “On consideration whereof, it is now hereby ordered, adjudged, and decreed by this court that the decree of said District Court in this cause be .and hereby is affirmed, with costs in favor of the appellee and against the appellant.” The mandate left the District Court with ministerial authority on?y to execute the decree of this court. [2] The jurisdicion of this court to issue the writ is not questioned, and the respondent admits that mandamus is an appropriate remedy in [615] a case where the mandate of an appellate court is disregarded. Perkins v. Fourniquet, 14 How. 328, 14 L. Ed. 441; City Bank of Fort Worth v. Hunter, 152 U. S. 512, 14 Sup. Ct. 675, 38 L. Ed. 534; In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291, 40 L. Ed. 414; In re Potts, 166 U. S. 263, 17 Sup. Ct. 520, 41 L. Ed. 994 ; 26 Cyc. 176; Byington v. Hamilton, 37 Kan. 758, 16 Pac. 54. A writ of mandamus is granted, directing the District Court for the District of Montana to vacate and annul its order of July 28, 1920, so far as the same requires that the relators detach only such number of the interest coupons attached to the $195,000 worth of the bonds of the irrigation district as, with interest added from the dates of the maturity of said coupons, will equal the amounts awarded to the relators by said decree, to wit, $25,000 and $14,626.71, and directing said District Court to enter a judgment upon the mandate of this court in said cause in accordance with its terms, affirming the original decree of said District Court, with costs.