Texas & Pacific Railway Co. v. Anderson

Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. The Circuit Court was correct in awarding execution against the company under the mandate. The judgment was originally against the receiver, to be paid in due course out of the assets in his hands, but the receiver had been discharged and the property restored to the company, and the company had been substituted as the party to the writ of error here, and been made in all respects as liable to the defendant in error as if it had itself, brought the writ. The judgment whs made final by the order of this court, and was not again sutn ject to be reviewed by the court below in the exercise of its equitable powers or otherwise. If the judgment had been reversed, the company wpuld have recovered its Costs against' the defendant in error, and the reversal would have been a bar to any liability on the judgment as such. It so happened that it was affirmed, and the-company was equally concluded. While the only question is as to the order of this court, we do not think there is any conflict between the mandate-and the stipulation, or that the language.of the stipulation in any respect limited the liability of the company in case of affirmance. Every point the receiver could have presented was raised on behalf of. the company; and disposed of after elabo.1' *242 rate argument and careful consideration, and the stipulation in that regard was fully complied with. If it had been intended to reserve the present contention, it is enough to say that that intention was not expressed and cannot be inferred, and the matter was determined by our judgment. The Circuit Court properly attempted to exercise no discretion in the premises, but discharged its duty by carrying the mandate into effect according to its terms. This court awarded execution against the company for the costs here, but it was for the Circuit Court to award execution for the amount of the judgment, as it was directed to do, and as it did, and interest was properly included at the rate which obtained under the law of Texas at the time judgment was rendered, the change in the law in that respect operating only prospectively. Inasmuch as its action conformed to the mandate, and there were no proceedings subsequent thereto not settled by the terms of the mandate itself, the case falls within the rule often heretofore laid down and a second writ of error cannot be maintained. Cook v. Burnley, 11 Wall. 672, 677; Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736. For these reasons, the answer to the first question certified must be that, upon the facts stated in the certificate, the Circuit Court of Appeals cannot review by writ of error this judgment of the Circuit Court in execution of the mandate of this court. This dispenses with the necessity of answering the other certified. Ordered accordingly