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Statement of the Case.

U. S. 316. This court, for reasons stated in that opinion, held that the mortgage was valid, and, therefore, that the Circuit Court erred; and in the opinion, as well as by its mandate sent down to the Circuit Court, ordered the decree of that court to be "reversed, and the cause remanded to that court for further proceedings not inconsistent with the opinion of this court." The mandate concluded, in usual form, as follows: "You, therefore, are hereby commanded that such execution and further proceedings be had in said cause, in conformity with the opinion and decree of this court, as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding."

The defendants presented the mandate and a certified copy of the opinion of this court to the Circuit Court, held by Judge Woods; and moved for a final decree that the former decree of the Circuit Court be reversed; that the cause be held to have been submitted by the plaintiffs upon bill and answer; and that, upon the facts alleged in the bill and answer, the law is with the defendants, and the plaintiffs take nothing by their bill, and the defendants have judgment for their costs.

The Circuit Court overruled the motion of the defendants; and, on motion of the plaintiffs, granted leave to amend the bill; but stayed proceedings to enable the defendants to apply to this court for a writ of mandamus.

The petition to this court for a writ of mandamus alleged that the order of the Circuit Court, overruling the motion of the defendants for a final decree in their favor, and granting the motion of the plaintiffs for leave to amend their bill, was inconsistent with and in violation of the opinion, decree and mandate of this court; and prayed for a writ of mandamus to Judge Woods to grant the motion of the defendants, and to overrule the motion of the plaintiffs.

This court granted a rule to show cause, in the return to which Judge Woods stated that his action, complained of by the petitioners, arose upon his construction of the opinion and mandate of this court on reversing his former decree; and set forth his view of the matter as follows:

Statement of the Case.

"Exceptions had been improperly sustained to the answer of defendants (petitioners). For this error, as respondent construes the opinion and mandate, the decree was reversed, and the cause remanded to the Circuit Court, with the usual directions for further proceedings there. Upon the return of the cause there, and after the erroneous decree had been set aside, but before other step was taken, petitioners moved for decree in their favor, on the ground that this court had treated the cause as having been submitted below on bill and answer, and that, this court having held the answer sufficient, it followed they were entitled to such decree. Respondent could not adopt that view, since it plainly was not what had occurred. There was no such submission of the cause below on bill and answer. Nor, in rendering the decree in favor of complainants, had respondent 'considered' the answer; but had, since sweeping exceptions had been sustained to it, treated it as out of the record, for any purpose of the decreea fact plainly manifest in the record before this court on appeal. He could not, therefore, suppose that this court meant, in what is said upon this point, to hold more, or other, than that the answer was sufficient, and that he had erred in holding it insufficient.

"Respondent, therefore, having in view the rules of practice prescribed by this court for the government of the Circuit Court, held that since, if he had overruled the exceptions to the answer, complainants would have been entitled to file replication, as provided by Rule 66 in Equity, and, if they desired it, to have leave to amend their bill, under Rule 45, he did not, nor does, believe this court, in reversing the decree, meant to deprive complainants of these rights; but inferred rather, as the more reasonable and logical deduction, that, when the Circuit Court had retraced its steps to the point where the first error occurred, the parties would stand, in respect of the case, and of each other, as if, in the progress of the cause, it had but then arrived at that juncture. To hold, instead of this view, that complainants had, by their mistake in filing exceptions, or by the court's mistake in sustaining them, or by both things together, forfeited their right to have the cause proceed, when the errors had been corrected, in the

Argument for Petitioner.

orderly manner indicated above, seemed and seems entirely illogical, and as, therefore, foreign to the purpose of this court. Respondent accordingly ruled that, when he retraced the steps held erroneous by this court, the cause should progress as if they had not been taken at all, and as if we were but now arrived at that point. To that end, he granted, when it was craved, leave to complainants to amend their bill, and would have entered the usual order against them to file replication on or before the next rule day, had not petitioners thereupon interposed their motion for stay of proceedings until this application could be heard here."

Judge Woods, in his return, declared himself ready, if his construction of the opinion and mandate should not accord with that of this court, to make and enter such order and decree, under its direction, as would carry out its opinion and mandate.

Mr. Alpheus H. Snow and Mr. George A. Knight for petitioners.

I. If this court, by its opinion, decree, and mandate had authorized any further proceedings after reversal except an entry of a decree by the court below in favor of the defendants on the bill and answer, it must necessarily have held that the Circuit Court had jurisdiction to receive and rule upon the so-called "exceptions to answer," which were, in fact, demurrers to the answer, and that it erred in its ruling on the so-called exceptions. The effect of the opinion, decree, and mandate, had such further proceedings been authorized, would have been to put this court in the position of having conferred jurisdiction upon the Circuit Courts of the United States to receive and rule upon a demurrer to a sworn answer in equity, and thus of having indirectly promulgated a new rule in equity setting aside the settled principle of equity practice which forbids that the sufficiency of an answer to constitute a defence to the bill should ever be tested.

This court, however, carefully guarded against such a result of its decision in this case by holding in its opinion that the

Argument for Petitioner.

case had been decided and should be thereafter treated as if submitted on the bill and answer, and that the Circuit Court erred in its finding and decree on the facts stated in the bill and answer; and by issuing a mandate commanding the court below to proceed in conformity with the opinion and decree, plainly meaning to command the court below to set aside its decree in favor of the complainants on the bill and answer and to proceed to render a decree, in favor of the defendants on the bill and answer.

The writ of mandamus prayed for should issue to effectuate the plain language and purpose of the opinion, decree, and mandate.

It is evident that the decree of the court below is explicable on either one of two grounds, that the court sustained the so-called "exceptions to answer" as a demurrer to the answer, and based its final decree on this interlocutory ruling and the refusal of defendants to plead farther; or that it treated the case as submitted for final decree on the bill and sworn answer by the election of the defendants to stand on their sworn answer and the acquiescence of the complainants therein. The decree is equally applicable to the previous recitals on either hypothesis, but the recital that the court "considered the pleadings" as the basis of its decree seems to point strongly to the conclusion that the court treated the case as submitted for final decree on the bill and answer, when it is remembered that the only "pleadings" which the court could have "considered" were the bill and answer, and that the

answer was a sworn answer.

But the decree of the court below was not to be explained, when the cause came to this court on appeal, on the hypothesis that the court based its decree on an interlocutory ruling sustaining what was practically a demurrer to the answer, because this would be to assume that the court below had permitted an unauthorized pleading to be filed, and made a ruling upon such unauthorized pleading, and thus had done an act not merely erroneous, but beyond its jurisdiction.

Neither the general rules of equity practice nor the Rules in Equity established by this court for the guidance of the

Argument for Petitioner.

Circuit Courts of the United States authorize any pleading whatever for the purpose of testing the sufficiency of an answer to constitute a defence to the bill. On the contrary, they describe clearly the proceedings subsequent to the answer which are authorized, and thus, by necessary implication, prohibit any other proceedings.

This court has held that the Circuit Courts of the United States have no authority or jurisdiction to receive on their files and rule upon a demurrer to an answer in equity, and that if a demurrer is filed, the case will be treated as if set down for hearing on bill and answer. Banks v. Manchester,

128 U. S. 244, 250.

II. Assuming (but by no means admitting) that the opinion, decree, and mandate of this court are open to a construction which would authorize the ruling of the respondent, as sole judge of the Circuit Court, counsel for petitioners cannot believe, as was claimed by counsel for the complainants in the Circuit Court, that this court intended that such construction should be placed upon them in order to relieve the complainants from the consequences of their mistake in filing their so-called "exceptions to answer," and in order to punish the defendants because they did not point out the mistake by filing a motion to strike the so-called "exceptions to answer" from the files. Had this court intended that any such construction should be placed upon the opinion, decree, and mandate, the effect of its decision would have been to hold that the parties by their agreement or acquiescence may set aside the settled rules of equity practice and confer jurisdiction on the Circuit Courts of the United States.

The complainants having had, by the action of the defendants in refusing to plead further, every benefit that they could have had, if they had elected to submit the case on bill and answer, there is no injustice done to them by holding them to the facts stated in the bill and answer; and the ruling of the respondent, as sole judge of the Circuit Court, opening up the case for a trial on the facts, is not to be upheld on the ground that it is necessary to prevent an injustice to complainants. If complainants had filed a general replication,

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