1. Where the whole law of a case before a circuit court is
settled by a decree, and nothing remains to be done unless a new
application shall be made at the foot of the decree, the decree is
a final one so far as respects a right of appeal.
2. Where there is nothing on the record to show to the court
that the indemnity given by an appeal bond is insufficient, the
presumption is that it is sufficient.
3. Where a party is perpetually enjoined and restrained by a
decree of a circuit court from any proceeding whatever not in
accordance with certain contracts which a complainant had applied
to that court to make him, by injunction, observe, that court --
though an appeal here has been taken within ten days and an appeal
bond with sufficient indemnity given -- may yet properly order the
defendant to desist from a second
Page 79 U. S. 87
suit in another court of the United States to set aside the
contract, just as above mentioned, passed on. And this although in
such second suit new parties are introduced whom the circuit court
had held were not necessary parties to the proceeding there. Such
an order is not a misconstruction by the circuit court of its own
decree.
These were two motions by the opposite parties in an appeal from
a decree of the Circuit Court of the United States for the District
of Virginia.
1. A motion on behalf of the appellee to dismiss the appeal for
want of jurisdiction on the ground of the decree's being
interlocutory and not final.
2. A motion on behalf of the appellant for a supersedeas or for
any suitable order prohibiting the court from proceedings on the
decree while the appeal was pending.
The case was thus:
In the year 1854, two persons, James S. French and Walter Lenox,
subscribed for the whole stock of the Washington & Alexandria
Railroad Company, then recently incorporated by the State of
Virginia. French taking three-fourths and Lenox one-fourth, and
French being made president of the company. The road was
built. French and Lenox, however, spent very little money of their
own in its construction, but raised large sums by borrowing. When,
therefore, the road was built, the company was seriously
embarrassed. Two deeds of trust had been executed in 1855, and in
1857 another deed was made to Lenox, as trustee, to secure bonds
issued to raise money for the purposes of the road.
The civil war broke out when the road was in this condition, and
French and Lenox went south and were disabled by the condition of
the country and by the government's taking military possession of
the road from asserting their title to the property.
During their absence, a proceeding was instituted in the
Alexandria County Court for the removal of Lenox as trustee in the
deed of trust to him, and this resulted in an order for such
removal and for the substitution of one Stewart as trustee in his
place. The new trustee proceeded in alleged conformity to the deed
of trust to sell the railroad.
Page 79 U. S. 88
Under the sale thus made, a new company was organized which
assumed the name of the Washington, Alexandria
&
Georgetown Railroad Company, and the government having
relinquished the road in 1865, this company took possession of it
at once, and not long afterwards entered into a contract with the
Adams Express Company in relation to the conveyance of express
freight and the furnishing by the latter of means to work the road.
This contract did not prove satisfactory, and by consent of both
parties, a lease for ten years was made to two persons named
Stevens and Phelps in May, 1866, and in the following June, another
contract for means of operation and for the conveyance of express
freight was made for ten years with the Adams Express Company.
Litigation soon arose upon this lease and upon these contracts.
One Davison, asserting himself to be a stockholder of the
Washington, Alexandria & Georgetown Railroad Company, filed his
bill in the Alexandria County Court in November, 1866, alleging
that the lease was made without authority, and in fraud of the
rights of the stockholders, and praying that it might be set aside
and annulled. The Adams Express Company filed its bill about the
same time, in the Circuit Court of the United States for the
District of Virginia, praying for the enforcement of its contract
with the company and with the lessees, and under that proceeding,
an order was made by the circuit court for the appointment of
receivers of the road, who took possession.
The Adams Express Company was not a party to the suit in the
state court, nor was the Washington & Alexandria Railroad
Company a party to the suit in the federal court.
The Washington & Alexandria Railroad Company describing
itself as
that company by James S. French, its president,
had already in March, 1866 (the government having with the
suppression of the rebellion, given up, as already said, its
possession, and French and Lenox having returned from the South),
filed its bill in the Alexandria County Court asserting its title
to the road, charging fraud in the whole proceeding for the
organization of the Washington, Alexandria
Page 79 U. S. 89
& Georgetown Railroad Company, and praying that it might be
declared void and that a decree might be made establishing its own
original title to the road as unimpaired by that proceeding.
In this condition of conflicting claims, and with these and
other suits pending, two instruments were executed with a view to
adjust things between all the parties at issue, and who were the
said French and Lenox, Stevens and Phelps, and one
Shoemaker, representing the Adams Express Company. Two
other persons,
viz., Brent and Smith, also had an
interest.
The transaction vested in Shoemaker the interest of French in
the Washington & Alexandria Railroad Company as security to
himself and the Adams Express Company for the repayment of the
$5,000 then advanced, and the sums to be thereafter advanced in
payment of the liabilities of the company, and of the lessees
incurred on account of the road, and as security to all the parties
for the performance of the covenants contained in the agreement,
and especially for the reorganization of the company upon the
rendering of a decree by the said Alexandria County Court
establishing its title to the road, and for the distribution of the
stock of the company among the parties in the stipulated
proportions. These instruments, which made what might be called a
sort of settlement contract, were intended as an adjustment of
controversies relating to the Washington & Alexandria Railroad
Company so far as the parties to it were concerned and as an
arrangement for means to liquidate its just liabilities and put it
into successful and profitable operation. The decree, on the
rendering of which the contract was to be carried into effect, was
rendered in the said Alexandria County Court on the 28th of August,
1868. It declared the sale by the trustee, Stuart, and the
organization of the new company fraudulent, null, and void, and
ordered that on execution of a bond in a sum specified to account
to creditors for the receipts of the road, it should be "restored"
by the officers of the so-called new company "to the possession of
the Alexandria & Washington Railroad Company, its
Page 79 U. S. 90
duly constituted officers and agents." At the time of this
decree, the road was in possession of the receivers appointed by
the federal court at the suit of Adams Express Company.
In this state of things thus far completed, Shoemaker filed a
bill in the court below, the Circuit Court for Virginia, against
French, and French then filed a cross-bill against him. The
original bill, after stating the rendering of the decree
contemplated by the settlement contract, as just above mentioned,
stating also the alleged equities arising from the contract, and
the action of the parties to it, except French, charged that
notwithstanding French's conveyance, and notwithstanding that a
meeting had been held of all the parties to the contract to
reorganize the road under the contract (he having been present),
French, under color of the order of restoration, had executed a
pretended bond in the sum specified in the order, as the bond
required by the decree, and that he had ordered the clerk of the
circuit court to issue a writ of possession ordering the
restoration of the road and property of the company, and under
color of this fraudulent and illegal proceeding had attempted to
take possession of the road notwithstanding that it was at the time
in possession of the receivers of the circuit court at the suit of
the Adams Express Company, represented by the complainant; charging
further that French was so reckless of his obligation to him, the
complainant, Shoemaker, and so determined to prevent the execution
of the reorganization of the company that unless enjoined, he would
damage the interest of the complainant and the others irreparably.
The bill prayed that French be enjoined from attempting to do any
act as president of the said Alexandria & Washington Railroad
Company, and from intermeddling with the road and property of the
company, or with the parties to the agreement, or with the
complainant in carrying out its provisions, or from holding any
meeting for the reorganization of the company, or from taking any
proceedings at law or in equity for that purpose, except by
proceedings in the suit in which the bill was filed in the Circuit
Court of the United States for Virginia, or by attending the
meetings for the
Page 79 U. S. 91
purpose of such reorganization, and voting or using the interest
he may have under the settlement, if he have any, for the quiet and
proper object of the said meetings,
and that his said interest
be sold by a commissioner of the court for the payment of said sum
of $5,000, according to the practice of the court, and that
the complainant, in his own behalf and as trustee of said parties
to said agreement, have such other and further relief as his case
and their interest might require.
The answer of French admitted the execution of the contract, and
that he was then and for some time afterwards satisfied with it,
but proceeded to allege circumstances of hardship and imposition
under which he was induced to become a party to it and various
other matters supposed to show a want of equity in the
complainant.
The matters set up in the answer were again set up in the
cross-bill of French, together with other matter of complaint, as
grounds for his prayer that the settlement contract might be
annulled, and the parties to it be restrained from all attempts to
enforce any pretended rights under it.
The point too was taken
in the cross-bill that Stevens and Phelps were necessary parties to
the original bill.
The answer of the original complainant to this bill denied every
substantial allegation of fact on which relief against the contract
was claimed.
The decree was thus made, Chase, C. J., presiding:
"This cause coming on to be heard upon the bill, answer, and
replication, and upon the cross-bill, answer, and replication, and
upon the proofs, and being maturely considered, the court is of
opinion that
the equity of the case is with the complainant in
the original bill, and thereupon do order, adjudge, and decree
that James S. French, the defendant in the original bill, be
perpetually enjoined and restrained from any use of the name or
title of the president of the Washington & Alexandria Railroad
Company under any election to that office heretofore held, and from
any action by himself or any attorney or agent to interfere with
any proceeding for the reorganization of the said company under the
contracts mentioned in said bill and dated on the 6th of December,
1867, and
from any proceeding whatever not in
accordance
Page 79 U. S. 92
with the said contracts, without prejudice, however, to
the right of the said French to the stock assigned to him by said
contract or to assert any claim he may have against said company
reorganized under said contract or against the said Shoemaker, or
against the Adams Express Company not in contravention of the said
contract, or to pursue by proper proceedings in law or equity any
claim he may have in respect to the distribution of stock made in
and by said contract founded upon the failure of consideration or
other cause."
"It is further ordered, adjudged, and decreed that the said
defendant, French, pay the costs in this cause, and leave is given
to either party to apply at the foot of this decree for such
further order as may be necessary to its due execution or as may be
required
in relation to any matter not finally determined by
it."
From this decree an appeal to this Court was immediately and
within ten days asked for by French, and allowed by the Chief
Justice, "upon the defendant's giving bond with good and sufficient
security in the sum of $500." The bond, &c., was given.
In this state of things, the bill and cross-bill in the equity
suit, on which the decree has just above been given, having been,
as the reader will have observed, a proceeding
between French
and Shoemaker alone, and the objection to the bill for want of
proper parties taken and overruled, French began a suit in the
Supreme Court of the District of Columbia against all the parties
to the settlement contract except Shoemaker for the purpose of
setting aside the agreement. His bill being demurred to because
Shoemaker was not a party, and the demurrer being sustained,
Shoemaker was added.
Hereupon, on the application of Shoemaker to the Circuit Court
of Virginia, that court ordered French to dismiss his bill in the
District and to stop proceedings under pain of imprisonment. He
dismissed his bill.
It was in this state of things that the two motions mentioned at
the opening of the report (on page <|79 U.S. 87|>87), came
before this Court.
Page 79 U. S. 95
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Accurate conclusions in motions like the present, involving
important questions of practice, are essential to the correct
administration of justice in all judicial tribunals exercising
appellate powers, but they are especially so in this Court, whether
the case is brought here from a State court or a circuit court, as
the jurisdiction of the Court is special, and must in every case be
tested by the Constitution and the laws of Congress.
Considerable importance is attached in this case to the motion
for a supersedeas as well as to the motion to dismiss the appeal,
but the Court, in view of the circumstances, will first examine the
motion to dismiss, as it is in its nature preliminary, and if
granted will render it unnecessary to examine the other motion.
On the sixteenth of November, 1868, the appellee filed a bill of
complaint against the appellant in the Circuit Court of the United
States for the District of Virginia setting up
Page 79 U. S. 96
two written agreements therein described, and to which special
reference is made as exhibited in the record. They are both of the
same date. Without entering much into details, suffice it to say
that one purports to be an assignment by the appellant to the
appellee of all his right, title, interest, claim, and demand
whatsoever in and to the property, stock, road, roadbed, franchise,
and charter of the Alexandria & Washington Railroad Company for
two specific purposes. (1) To secure the payment to the appellee of
the sum of five thousand dollars advanced by the appellee to the
appellant. (2) To carry into effect the purposes and objects set
forth in the other written agreement. Both agreements are signed by
the appellant, and upon the back of the one given to secure the
payment of the money advanced is the following agreement and
consent: "We, the undersigned, do hereby agree and consent to the
terms and conditions of the within assignment," which expressly
recites that it was executed to accomplish the two purposes already
described. Reference to the record will show that the assignment is
signed by the appellant and that the endorsement is signed by all
the other parties supposed by him to have an interest in the
assigned property.
Special reference is made in the instrument of assignment to the
purposes and objects set forth in the other written agreement, in
which it is stipulated in substance and effect as follows:
(1) That the appellant and Walter Lenox will convey all their
right, title, and interest in that railroad company to a new
corporation, to be formed as therein specified, or to devote all of
that interest to the common benefit of the parties to the
instrument, in the proportions therein specified, in case the old
company should be revived.
(2) That they agree to assign to the new company, when the
parties shall actually organize the same, all their interest as
lessees of the Washington, Alexandria & Georgetown Railroad, or
to hold the same for the exclusive use of the parties to the
agreement according to their respective interests.
(3) That the appellee, for himself and the Adams Express
Company, covenants to aid the new company, with
Page 79 U. S. 97
money and credits, to pay, settle, or compromise certain
specified liabilities as set forth in the agreement. Certain other
important conditions are also inserted in the instrument, but they
are not material in this investigation.
Process was duly issued and served, and the appellant appeared
and filed an answer setting up various defenses to the merits of
the claim made by the appellee. Subsequent to the filing of the
answer, the appellee filed the general replication, and the cause
being at issue, proofs were taken by both parties. Before the final
hearing, however, the appellant filed a cross-bill in which he
insisted upon the defenses set up in the answer and also alleged
that the other parties to the agreements were necessary parties to
the bill of complaint. Due answer was made by the appellee to the
cross-bill, and the appellant filed to the same the general
replication.
Such being the state of the pleadings, the cause, on the
twenty-first of June last, came on for final hearing "upon the
bill, answer, and replication, and upon the cross-bill, answer, and
replication, and upon the proofs," and the statement in the decree
is that "the court is of the opinion that the equity of the case is
with the complainant," and that the court
"thereupon do order, adjudge, and decree that James S. French,
the defendant in the original bill, be perpetually enjoined and
restrained from any use of the name or title of the president of
the Washington & Alexandria Railroad Company, under any
election to that office heretofore held, and from any action by
himself or any attorney or agent to interfere with any proceeding
for the reorganization of the said company under the contract
mentioned in said bill, &c., and from any proceeding whatever
not in accordance with the said contracts, without prejudice,"
as therein recited. Omitting the qualifications stated in the
recitals, the decree continues as follows: "It is further ordered,
adjudged, and decreed that the said defendant, French, pay the
costs in this cause."
Final decrees in suits in equity passed in a circuit court,
Page 79 U. S. 98
where the matter in dispute exceeds the sum or value of two
thousand dollars exclusive of costs, may be reexamined in this
Court, but the act of Congress does not define what is meant by the
phrase "final decree." Objection is made that the decree is not
final because it does not in terms dismiss the cross-bill, but the
Court is of the opinion that the statement contained in the decree
that the equity of the case is with the complainant by necessary
implication disposes of the cross-bill as effectually as it does of
the answer filed by the appellant to the original bill of
complaint. Leave, it is true, is given to either party to apply at
the foot of the decree for such further order as may be necessary
to the due execution of the same or as may be required in relation
to any matter not finally determined by it, but it is quite
apparent that that reservation was superadded to the decree as a
precaution, and not because the court did not regard the whole
issue between the parties as determined by the decree. Such was
doubtless the view of the chief justice who passed the decree, as
the application for the appeal was made to him at the same term and
was immediately granted without objection.
Several cases might be referred to where it is held that a
decree of foreclosure and sale of mortgaged premises is a final
decree and that the defendant is entitled to his appeal without
waiting for the return and confirmation of the sale by a decretal
order, upon the ground that the decree of foreclosure and sale is
final as to the merits, and that the ulterior proceedings are but a
mode of executing the original decree. [
Footnote 1]
Unquestionably the whole law of the case before the court was
settled by the chief justice in that decree, and as nothing remains
to be done unless a new application shall be made at the foot of
the decree, the Court is of the opinion that the decree is a final
one, as it has conclusively settled all the legal rights of the
parties involved in the pleadings. [
Footnote 2]
Page 79 U. S. 99
2. Beyond all doubt, the appeal of the respondent in this case
was allowed within ten days from the date of the decree, and the
record shows that the bond to prosecute the writ to effect and
answer all damages and costs if he fail to make his plea good was
filed and duly approved within the same period, but it is denied by
the appellee that the appeal operates as a supersedeas, because it
is insisted that the bond given in the case is not in a sum
sufficient to constitute indemnity for the whole amount of the
decree.
Where the judgment or decree is for the recovery of money not
otherwise secured, the indemnity must be for the whole amount of
the judgment or decree, including just damages for delay and costs
and interest on the appeal. [
Footnote 3]
But in all suits where the property in controversy necessarily
follows the event of the suit, as in real actions, replevin, and in
suits on mortgages, indemnity is only required in an amount
sufficient to secure the sum recovered for the use or detention of
the property and the other incidental items, as in cases where the
judgment or decree is for money. What is necessary is that it be
sufficient, and when it is desired to make the appeal a
supersedeas, that it be filed within ten days from the rendering of
the decree, and the question of sufficiency must be determined in
the first instance by the judge who signs the citation, but after
the allowance of the appeal that question, as well as every other
in the cause, becomes cognizable here. It is therefore matter of
discretion with the court to increase or diminish the amount of the
bond and to require additional sureties or otherwise as justice may
require. [
Footnote 4]
All that is required in a case where the writ of error is not a
supersedeas is that the bond shall be in an amount sufficient to
answer the costs in case the judgment or decree is affirmed.
Nothing appears in the record to show that the indemnity given is
insufficient, and inasmuch as nothing appears
Page 79 U. S. 100
to the contrary, the Court is of the opinion that it must be
presumed that the amount is sufficient.
Appeals and writs of error are constituted a supersedeas in
certain cases by virtue of the twenty-third section of the
Judiciary Act, when the conditions there prescribed are fulfilled.
Where those conditions are complied with, the act of Congress
operates to suspend the jurisdiction of the subordinate court and
stay execution pending the writ of error or appeal and until the
case is determined or remanded. [
Footnote 5]
Power to issue a supersedeas to a decree in a subordinate court
does not exist in this Court where the appeal was not taken and the
proper bond given within ten days from the date of the order,
except where an appeal was duly taken within ten days, and the
aggrieved party is obliged to take a second appeal in consequence
of the clerk below having neglected to send up the record in
season, or where the granting of such a writ becomes necessary to
the exercise of the appellate jurisdiction of the Court, as where
the subordinate court improperly rejected the sureties to the bond
because they were not residents of the district. [
Footnote 6]
Appellate power in the controversy under consideration is
conferred upon this Court, and it is clear that this Court may
issue a supersedeas in such a case whenever it becomes necessary to
the exercise of its appropriate jurisdiction. [
Footnote 7]
Attention will now be called to the grounds of the motion for a
supersedeas, as shown in the affidavit of the appellant. He states
that he filed a bill in equity in the Supreme Court of this
District against Oscar A. Stevens, George W. Brent, W. Jackson
Phelps, Richard T. Merrick, J. Dean Smith, and Walter Lenox; that
the respondents demurred to the bill on the ground that the
appellee before the court was a necessary party respondent in the
case, and that the court
Page 79 U. S. 101
where the bill was pending sustained the demurrer. Wherefore the
appellant here amended his bill and made the appellee a party
respondent.
Consequent upon those proceedings, as the affiant states, the
Circuit Court for the District of Virginia laid a rule on him
requiring him to appear in that court on a day named in the rule to
show cause why he should not be fined and attached for the acts set
forth in the petition and charged therein to be in violation of the
aforesaid order and decree of the court below in this case; that he
appeared and showed cause as required, but that the court there
being of opinion that he had violated the decree in the case before
the court by filing his bill in equity in the Supreme Court of this
District, ordered that he forthwith dismiss the same and cease all
proceedings under the same on pain of imprisonment, and that he,
having no alternative but to go to jail or to submit to the order
of the court, chose the latter and dismissed his bill of complaint.
His views are that the circuit court erred in passing that order,
and that that court gave an erroneous construction to the decree
entered by the chief justice in the case, making it more
comprehensive than its language will warrant, and he moves this
Court to issue a supersedeas or other suitable order to correct
those errors.
Suppose the theory of the appellant is correct that the circuit
judge, in construing the decree, gave it a scope beyond its
legitimate meaning, very grave doubts are entertained whether this
Court, under the present motion, could afford the appellant any
remedy, as the facts supposed would not show that anything bad been
done to defeat or impair the appellate jurisdiction of this Court.
Acts void in themselves may be done by the circuit court outside of
the jurisdiction of the circuit court which this Court cannot
reexamine. Authority does not exist in this Court to issue a
supersedeas except in cases where it is necessary to the exercise
of its appellate jurisdiction, but the Court is not inclined to
rest its decision in this case upon that ground, as we are all of
the opinion that the circuit judge did not err in his construction
of the order and decree enjoining the appellant in that decree.
Page 79 U. S. 102
He is perpetually enjoined and restrained from any use of the
name or title of the president of the company under any election to
that office heretofore held, and from any action by himself or any
attorney or agent to interfere with any proceeding for the
reorganization of the company under the contracts or
from any
proceeding whatever not in accordance with the said contracts.
More comprehensive language could hardly be employed, and argument
can hardly make it plainer or add anything to its force or
effect.
Both motions denied.
[
Footnote 1]
<|13 Pet. 15|>Whiting v. Bank of the United
States, 13 Pet. 15;
<|2 Black 524|>Bronson v.
Railroad, 2 Black 524.
[
Footnote 2]
<|6 How. 202|>Forgay v. Conrad, 6 How. 202;
<|7 Wall. 342|>Thomson v. Dean, 7 Wall. 342;
Curtiss' Commentaries § 188;
<|19 How. 283|>Beebe v.
Russell, 19 How. 283.
[
Footnote 3]
<|9 Wheat. 553|>Catlett v. Brodie, 9 Wheat. 553;
<|16 How. 135|>Stafford v. Union Bank, 16 How. 135;
<|17 How. 275|>Same v. Same, 17 How. 275.
[
Footnote 4]
<|6 Wall. 156|>Rubber Co. v. Goodyear, 6 Wall.
156; Rule 32;
<|10 Wall. 273|>The Slaughterhouse
Cases, 10 Wall. 273; 1 Stat. at Large 404.
[
Footnote 5]
<|11 How. 295|>Hogan v. Ross, 11 How. 295.
[
Footnote 6]
<|11 How. 296|>Hogan v. Ross, 11 How. 296;
<|5 Wall. 188|>Ex parte Milwaukee Railroad Co., 5
Wall. 188;
<|2 How. 74|>Stockton v. Bishop, 2 How.
74;
<|4 Wall. 640|>Hardeman v. Anderson, 4 Wall.
640;
<|7 Cranch 279|>Wallen v. Williams, 7 Cranch
279;
<|12 How. 389|>Saltmarsh v. Tuthill, 12 How.
389.
[
Footnote 7]
1 Stat. at Large 81;
<|2 How. 75|>Stockton v.
Bishop, 2 How. 75.
