The opinion
On Petition for Rehearing and on Motion to Modify Opinion and for Entry of Final Judgment.
Before BAKER and MACK, Circuit Judges.
MACK, Circuit Judge.
The able brief filed on the petition for rehearing presents no matter that was not heretofore fully considered by the court. The petition will be denied.
The successful parties move that, instead of remanding the cause for retrial, this court enter a judgment, or direct the District Court to enter a judgment, on the findings heretofore made therein. In opposition thereto, it is urged for the first time, by what may he deemed a counter motion, that this court should dismiss the case, on the ground that it is a suit a.t common law and that the issues can be determined only in a court of equity.
[13,14] Since the briefs on this motion were submitted, the judicial Code has been amended by the Act of March 3, 1915. Section 274a has been added thereto. It forms part of chapter 11, covering “Provisions Common to More Than One Court,” and is as follows:
‘See. 274a. That in case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to conform them to the proper practice. Any party to the suit shall have the right, at any stage of the cause, to amend his pleadings so as to .obviate ihe objection that his suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendment, if preserved, shall stand as testimony in ihe cause with like effect as if the pleadings had been originally in the amended form.”
*664 If this cause of action were cognizable only in a court of equity, no substantial amendment to. the pleadings would be necessary to effectuate the change now permitted by the statute, and, as the findings of fact are undisputed, it would be the duty of this court to enter or to direct the entry of such a decree as our conclusions of law require. There would be no difference in substance between such a decree in equity and the proper judgment at law, and the defendant would have, no ground to complain that the enforcement of a judgment might be less efficacious than that of a decree.
But even without the new statute the objection could not prevail, for inasmuch as the court of law clearly was not without jurisdiction of the subject-matter, it comes too late. U. P. R. R. Co. v. Whitney, 198 Fed. 784, 787 , 117 C. C. A. 392 ; Reynes v. Dumont, 130 U. S. 354 , 9 Sup. Ct. 486, 32 L. Ed. 934 . Again, as the case was, in effect, tried by the court without a jury, and its findings of fact are not attacked, it is of no practical importance whether a court of law or of equity was the proper forum. Ill. Surety Co. v. United States, 215 Fed. 334 , 131 C. C. A. 476 . The counter motion to dismiss will be denied.
[15] It is, however, urged that, dealing with the case as an action at law, this court is without power to modify the judgment of the District Court, and can only remand with directions to* award a new trial. The objection is without merit. This court is vested with power to modify, as well as to affirm or reverse, any judgment of the District Court (R. S. § 701 [Comp. St. 1913, § 1669]); Act March 3, 1891, c. 517, § 11, 26 Stat. 829 (Comp. St. 1913, § 1651) and in a case tried without a jury, where the findings of fact made by the court are undisputed, as well as when they are agreed upon by the parties, as in Thomas v. Matthiessen, 232 U. S. 221 , 34 Sup. Ct. 312, 58 L. Ed. 577 , the proper judgment may be rendered thereon in the appellate tribunal after a reversal of the judgment of the trial court. See, too, Ins. Co. v. Boykin, 12 Wall. 433 , 20 L. Ed. 442 ; Ins. Co. v. Piaggio, 16 Wall. 378 , 21 L. Ed. 358 .
The motion to modify the order heretofore made, and to render judgment in accordance with the findings of fact made by the trial judge, and the law as held in the opinion heretofore filed, will be granted. The judgment will be in debt for the face of the bond, with damages for the same amount, for the use of the plaintiffs in error, in case No. 2092. As the total amount due them under the findings exceeds the face of the bond, the damages for the use of each of them will be reduced pro rata, and will be for the several amounts as found by the trial court, so reduced. The reduced damages are specified in the judgment order which we direct to be entered, and bear interest at 5 per cent, per annum from August 16, 1911.
The judgment of the District Court is reversed, and the cause remanded, with directions to enter. therein the judgment which we have entered here and to enforce said judgment by proper process.
Note. — Judge SEAMAN concurred in overruling the petition for rehearing. He did not participate in the consideration of> the motion and counter motion.