Appendix — Edwards v. Bingham Pump Co.

30

APPENDIX

ANALYSIS OF CASES CITED BY PETITIONER

IN SUPPORT OF POINT IV (a)

(Petitioner’s Brief, pp. 23, 24)

Hill v. Chicago & Evanston HR. N. Co., 140 U. S.

52, at 53-55.

A decree was entered final as to some of the de-

fendants and interlocutory as to others. No appeal

was taken from that portion of the decree which was

final. Held, that the decree was severable; that on

appeal from a subsequent decree fixing the amount

recoverable from those defendants over whom the

court retained jurisdiction, the propriety of the

previous decree dismissing the appeal as to other

parties was not open for examination, they being

no longer parties to the suit.

Sutton b. Gulf Smokeless Coal Co., 77 F. (2d)

439. 441.

After appeal from an interlocutory decree and

remand to the District Court to assess damages, on

appeal from the latter no question decided in the

former appeal was open for examinalion.

United Slates b. Van Blargen. 60 F. (2d) 874,

875.

There was no appeal from a final decree, but an

attempt by independent proceedings to set aside the

decree for lack of service, which was allowed, and,

N

ZZ... * ²˙ ͤð? —ͤuͤn.õAm

31

on appeal by the government, defendant attempted

to have merits of final decree re-examined. Held,

question of service only was before the appellate

court.

Casals b. Fernandez, 40 F. (2d) 831, 852.

After two trials and two appeals, a rule of evidence

had been established and on final judgment legit-

imacy of a child declared. No appeal having been

taken from the adjudication as to the rule of evi-

dence, it was not open for re-examination,

Sun Company b. Vinton Petroleum o., 248 F.

623, 625.

An appeal taken from an interlocutory decree.

On remand trial court refused to consider cross com-

plaint. On appeal from final decree, over vigorous

dissent, Circuit Court of Appeals held decision on

previous appeal decided all matters raised or which

could have been raised.

Guaranty Trust Co. b. International Pump Co.

242 F. 920-921.

A final decree provided for taxation of costs

against intervenor in appeal taken by him. Affirmed,

and on remand costs were taxed. On appeal from

such taxation, held that decision by Circuit Court

of Appeals on appeal from final decree which con-

tained proviso for such taxation, complainant could

not reopen the question.

4 .

4 — *

— Sr

32

Quinton v. Neville, 154 F. 482, 434.

A final decree directed sale of real estate to

satisfy alien. No appeal taken, but a writ of review

was sought which was denied. Held, on appeal from

a supplementary order directing sale by special

master instead of by private sale, the question of

validity of the final decree could not be raised.

Burns b. Cooper, 153 F. 148, 151.

An appeal was taken from a final decree subject-

ing to the lien of a mortgage not only the wife’s life

estate, but after acquired interest therein. Reversed,

holding that only life estate was subject to lien.

After remand, the wife asked for a decree leaving

open the question, whether she had less than a life

estate. The trial court refused, and on appeal from

that decision it was held that the first appeal settled

the nature of her estate and the question was res

judicata, particularly in view of the fact that on first

appeal she had insisted that her interest was a life

estate.

Chase b. Driver, 92 F. 780.

After final decree mortgaged property was sold

and sale confirmed. No appeal taken therefrom.

After accounting to determine whether there was 4

deficiency between amount derived from sale and

amount due mortgagee, the redemptionor app -aled

and sought to challenge the provisions of the final

decree of sale and order of confirmation. Held, he

was foreclosed from so doing.

33

AUTHORITIES CITED BY PETITIONER IN SUPPORT

OF POINT IV (b)

Illinois b. Illinois Central R. N. Co., 184 U. S.

77, at 91-93.

On appeal from a final decree the court fixed the

rights of the parties dependent on the existence or

non-existence of certain facts and remanded the case

for determination of those facts. From the decree

making such determination an appeal was taken

and appellant endeavored to raise questions decided

on a previous appeal. Held, to be res judicata.

United States b. Camou, 184 U. S. 572, 575.

Held, that where appellate court has issued its

mandate a second writ of error brings up only errors

in proceedings subsequent to the mandate.

In re Potts, 166 U. S. 263, 267.

On an earlier appeal the Supreme Court held

patent valid and infringed and remanded case for

further proceedings. Held, that lower court, with-

out express leave of Supreme Court, could not grant

new trial for newly discovered evidence, or permit

new defenses to be brought in by amendment.

To the same effect are,

Roberts b. Cooper, 20 How. 467, 481;

United States b. Bollman, 81 F. (2d) 1009, 1010;

Keeler b. Fred T. Ley & Co., 65 F. (2d) 499, 501;

Turner b. Kirkwood, 62 F. (2d) 256;

Bissell Carpel-Sibee per Co. v. Goshen Sweeper

Co., 72 F. 545, 555.

34

Gregory b. Pike, 77 F. 241, merely holds that

a rule of law laid down by the appellate court in one

appeal is the law of the case and cannot be re-ex-

amined.

CASES CITED UNDER PETITIONER’S POINT IV (e)

McLish b. Ruff, 141 U. S. 661,

holds that appeal does not lie from a demurrer to

the jurisdiction of the court, but must await the

final decree.

Heike v. United States, 217 U.S. 423,

holds that no appeal lies from a special plea in bar

claiming immunity from prosecution, but must

awail a final judgment.

Forgay v. Conrad, 6 How. 201, 206.

The court criticized the lower court for making a

decree final by authorizing an execution to enforce

the same and retaining jurisdiction for certain other

related matters. Later cases, such as McGourkey v.

Toledo & Ohio C. Ry. Co., 146 U. S. 536, 545, and

Beebe v. Russell, 19 How. 283. 287, distinguish, if

they do not criticize Forgay v. Conrad by pointing

out that the fact that execution has been awarded

was the only ground upon which the finality of the

decree could be supported.

Arnold v. United Slates, 963 U. S. 427,

holds that a decree for the amount of the penalty of

a public contractor’s bond retaining jurisdiction to

er ee ee

PR Sie ONE SEE Fae Nets oe

35

determine the amount due the subcontractors and

materialmen is an interlocutory and not a final de-

cree.

Collins b. Miller, 252 U. S. 364-370,

held that a writ of habeas corpus, which was allowed

as to one charge and denied as to two others, but

retained the accused to await further action of the

District Court was not final, but interlocutory, and

no appeal would lie.

Rexford b. Brunswick-Blake-Colender Co.

228 U.S. 339,

held that no appeal would lie from an order which

determined the question of title, but which referred

to the master the question of the identity of trees

which the defendants were entitled to remove was

interlocutory and not final.

Covington b. Covinglon First Nat'l. Bank, 185

U. S. 270, 277,

permanently enjoined the assessment and collection

of taxes upon defendant's capital stock for all pe—

riods prior to March 21, 1900, and retained jurisdic-

tion with regard to assessments made between the

date of the entry of the judgment and the expiration

of defendant’s existing articles of incorporation.

Held. to be an interlocutory and not a final decree

and unappealable.

r

36

Southern Ry. Co. b. Postal Telegraph Co., 179

U.S. 641.

In a condemnation suit before dam

assessed no appeal could be taken from an order

sustaining a demurrer to the defendant’s answer

because not final.

ages were

Cole v. Rustgard, 68 F. (2d) 316,

holds that an order quashing service of summons is

not appealable because not final.

Wright v. Taft-Peirce Mfg. Co., 287 F. 131,

holds that an order granting a new trial is not a final

order and therefore not appealable.

Satterlee v. Harris, 60 F. (2d) 490, 491,

application by cred-

held that an order denying an

hout prejudice was

itors to dismiss their claims wit

not final and unappealable.