GREEN tI'.ORICAGO, S. &'C. R.Ca.
90'1
tifi.ed check, drawn l1pona soivent bank, payable to each county treasherein;' the check to such treasurer being for the same sum urer of money ·heretofore tehdered" to him by complainant as the sum admitted to be due; that the said clerk deliver to each of said defendants, or to his attorney in this cause, the check so drawn; tha.t upon delivery of such check, the bank upon which it is drawn remaining solvent, it shall be received and accepted as of the day of the original tender, with the same force, effect, and operation, to every intent, purpose, and inference whatsoever as if'the money was actually received on that day. All questions as to the costs of this receipt and delivery are reserved.
GREEN .d
al. ".
CHICAGO; S.
& C. R. Co.
et al.
(Circuit Court oJ .Appeals. S1xth. C'rou(t. January 18. 1892.) 1. ApPBAL-AJl'FJRMAN.MANDATB-ALLOWANOB OJ'INTEREST.
2.
When a judgment for money which does not award interest is affirmed Wltbout by the lower court referel\ce to the question of interest, such a decree ia to be as a d4(claration that no inte,rest is to be allowed.
.
SAME-SUPREME COURT RULE.
I
RUle 28, Sup. Ct. U. S., providing for the allowance of Interest on afDrmed jndg., mentl, ill for the guidance ofthe supreme court only, and does notauthorizll an in·, ferior court to add an award' of interest to a decree affirming its own judgment;' the function of the inferior court in luch CBBe8 is minilltetial, rather tban judioial.
In Equity. NO'f"I"iA & Norris, for T. J·. ()!Brim, for appellees. Before JACKSON, Circuit Judge, and SAGE and SWAN, District Judgee.· JACKSON, Circuit Judge. In the matter of the appeal of Henry Day from the or\ler of the circuit court of the United States for the western district of Michigan,. southern division, upon the petition of Daniel E. Sickles and Benjamin F. Slevens in thE'! above·entitled cause. Under foreclosure proceedings in the above-entitled cause, a fund was brought into court for distribution among holders of the bonds of the defendant railroad company. Int1le distribution of said fund, Henry Day, assignee of Benjamin Richardson, by mistake was paid and received more than he was properly entitled to by the sum of $2,173.91. By decree entered in the cause on October 8, 1883, said mistake was corrected, and said Day was ordered to relimdsaid overpayment, which was adjudged to belong to several claimants in certain proportions and amounts. From .. is order;aIid the of distributibnrelating to other matters not necessary to be noticed, Day appealed to'the supreme court. This appeal was taken ir. November, 1883, and Day filed an approved superIedea8 bond, 8b required in the allowance thereof. On January 13,1890,
·
,FEDERAL REPpRTER t
vol. 49.
th . .'... pn.,. .. co.. urtaffirmed. the qec,ree' of the circuit .COUf.t. (10. Su.P. Ct. ..e.<Wf. ordered that said, ,Henry Day, within 15 oays afte!" servhim .or his solicitor of a ,copy of the decreelsb9uldpayinto of $2,173.91 as having been overpaid to him, and the to the circuit Q<l.urt, under qsual mandate that ':,you, herebycomma,nded that such 'execution and pro_ ceedinga .be had in s!1idcause as according to right and justice and the ,United States ought to be had, the said appeal notwithstandlaws tbe decree and directing the circuit court with its eXllcution, was filed in said court in July, 1890. to Thereafter, on March 12, 1891, said Day paid over to the clerk of said circuit court the amount so decreed against him, ($2,173.91,) but declined and refused to pay interest on the same. Thereupon Benjamin F. Stevens and Daniel E. Sickles, two of the several claimants interested in the principal of the amount so refunded by Day, on April 15, 1891, presented their petition in the caus?, reciting the foregoing history the proceedings, and praying that saId Day might be required tb pay into court the interest on.lilaid sum of $.2,173.91, fordistribution, in pursuance of the terms of the dectee. To this petition Day appeared by' his solicitors, and interposed an ore tenus demurrer or objection ,to the,same and to re' . Thetquestionpresented by the petition was heard by the district judge, (Hon. H. F. SEVERENS,) holding the circuit court, who held that said Day was· liable for and should pay interest on said sum of $2,173.91, so him, from the 28th day of November, 1883, up to Marchl2,189.l, when the principal was paid according to the rates of interest authorized by the statutes of Michigan during that period. The amount of such interest was $1,048.19, and this sum said Day was ordered to pay into court within 10 days froltli the date of the order. From -this decree of the court, adjudging him liable for $1,048.19 as interest, and ord:eniqg);Iim to pay the same into court, said Day has appealed to this court. He assigns various grounds of error, only one of which, in.the take of the case .and questions involved, need be noticed, and that is. 'the court below erred in him liable for and in requiring}liqitc> pay interest on the l!um of which he was by the decree, of October frpm the date of perfeQtins.. to,thesupreme court. It will be observed that neither of 8, 1883, northe the supreme same, and remanding the cause for the execution ,o.r the payment of interest on the amount said Day wa,s req\tir\ld JO refund. Had the circuit court, the cause was ret\l,rned' to it,upder the mandate of the supreme court, /luthority, Jwris4ictiori to entertain of Ste;vens, and Sickles, amJ.t9 that Day should,payinterest on said sum of ordered tore!l/lY py the October 8, 18&P?We thlpk not,u,nder theauthonty of In &- G. R. S. 91-96 1 .11 Sup. Ct. wh,ich is conclusive on
,..
GREE:N ".cmCAGO, B; &C. B.
CO.
It is suggested thatsueh;interestwas:auth9rized by tbetwenty-thira rule of the ,supreme 'court, (3 SUp;!Ct. Rep. XIII.,) which provides that"In cases where a writ of error is prosecuted to this court. and the jUdgment of the inferior court is affirmed, the interest shall be calculated and levied from the date of the judgment below until the same is paid, at the same rate that similar judgments bear interest in the courts of the state where such judgment is rendered. * · · The Ilame rule shall be applied to decrees for the payment of, money in cases in'equity, unless otherwise ordered by this court." There is nothing in this rule to warrant or sustain the action of the circuit court in the case under consideration. The rule has reference alone to the action of the supreme court on the subject of interest upon the affirmance of judgments and decrees of inferior courts. It was inrule and regulation of its own practice tended to prescribe in the matter of interesLIt is not to be enforced by inferior courts to wbich mandates of the supreme court are sept, to execute and carry into effect judgments or decrees on which that court has not awarded or directed the allowance or payment of interest. Whether interest shall be allowed' on the affirmance of a judgment or decree of the lower court from the date of its rendition is a question for the consideration solely of the supr,eme,court, especially where interest is not awarded as a part of such judgment or decree by the inferior court. "Vhere the judgment or decree of an inferior court does not expressly award or carry interest, and the supreme court merely affirms such judgment or decree, and says nothing on that subject, "it is to be taken as a declaration of this court that, on the record as 'preljented to it, no' interest was to be allowed." 140 U. S. 94, 95, 11 Sup. Ct. Rep. 673, 674. In such cases it is the duty of the inferior court to which the mandate of the supreme comt is directed to enter judgment or decree strictly in accordance with the ment, or decree of the supreme court and "not to add to itthe allowance of interest." In Boyce v. Grundy, 9 Pet. 275, cited with approval in the case of In re Washington &- G. R. Co., 140 U. S. 96, 97,11 Sup. Ct. Rep. 674, it is said: "The decree of the circuit court allowing interest in such a case is to all intents and purpose8t[UOad hoc a new decree, tending the former decree." This, under a mandate from the s'uprellle court in cases like the present, the inferior court has no authority to do. Its duty and function are ministerial, rather than judicial, in such oases; inasmuch as it is executing the judgment or decree of a higher court, instead of its own judgment or decree. ' In Kimberly v. Anns, 40 Fed. Rep. 551, the authorities on this subject are cited. Theyestabliso that under a mandate from the supreme court the inferior court cannotV'ary in any ,way the decree of the former, or give other or further relief,but is limited to the execution of the mandate." Our conclusion thel'efore is that the decree of the circuit court ordering the appellant, Henry'Day, to pay the sum as interest on the tttndunt he was.decteed to refund,and which he bas repaid into court, wBS erroneous, artdMjob1tl ,be reyersed{and it is accordingly so
ca,se, wi},l remand!¥i tp oourt, with. to disJOissthe :])aniel E. Bel)jamin F. SteveDs,'on,wmch the decree against Henry Day was made·
"
i;
1'"'
DIXON f1., ORDER, OF, RAILWAY ,CONDUCTOBS OF, AMERICA. (O(rcuit, Oourt, E. D. WiBCon8m.
April 18, 18W.)
lI'oJUn&1r!NSUR.lNCB COMJ'ANIBS-AGB1I'TfU'OR SBRVICB OF PROo1l:sS.
aI! assoela,tiol) haviI!g a benefit require lteoretarY 'of each local division to' be'ttlty to the health of every appheant for tnIlU1'lI,IIdlil, to keep acorreet, list of the members of the benefit department, to place tJ,tlilrllOI! ,tq!-, name ,of of tll\t Insurance his division bY,tHmllfer from any other 'diVIsion, and also make It'tbe duty of members to no$I:fy,fb"im :Gf, any Ch,anges of: resldenCe\IUeh, secretary must be co,Dsldered an IDsur, of the 8sfoeistlon, under, Rev. St,. Wis. § 2687, subd. 9, lind section '11177, c1eolaring who shal be cODslderedagents of a foreign Insurance company for the p1U'pIl8e of receiving service of proDess·
.M Action by MarY, Dixon against the Order of Railway Conductors,ofAmarics to upon :an insurance certificate. Heard on motiopto ,vacate the of process and dismiss the action. Overruled. ' OMs. ,,4,, for the,rootion. Wigman & Mnrtin, opposed. JEmmlS., District Judge. This suit was brought ina conrt of the state of ren;lOved into tbis court by the defendant. The plaintiff claims under a certain certificate of insurance, issued in 188.5 upon theli/a piber deceased husband by the "Order of Railway Conductors," then ·anunincorporated !l$sociation, subsequently, and in 1887, inrorlaws of 'the state of' Iowa, and having its generalofporated fices withj1l that stllte. 'l'he SU\DmdnSwas served in November, 1890, .(1) upon W,. Pd;)aniels, the grand secretary of the order, and a resident of the atate"of lown", while temporarily within the state of Wisconsin,.1n attenda.nce,ll.s such officer, upon a suit depending in this court j, (2) upon Charles D. Bnker,a resident of Wisconagainst; of a subordinate division of the order, located within tbat state; TiJ.e de/end/;\nt now moves to vacate such service ofprocrss, and to dis.U1i$s tbe action; upon tbegtound that each such service was bylaw. ',' The St. Wis.§ 1953) require every life in.. surance QarP<)l'8it!QIl no.torgnnized under the laws of· this state, before by written instrument deposited with the comdping missioner of designate an attorney,:resident within the state,upl») Whom process against the company may be served with raIlPflct to of action arising out of any business or transaction wifJlin statute (Rev. St·. Wis. § 2637,. subd. 9) pro--