PETITION FOR MANDAMUS DIRECTED TO THE JUDGES OF THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT AND THE HONORABLE SOLOMON H. BETHEA AS JUDGE OF THE DISTRICT COURT OF THE UNITED STATES, ETC.
MR. JUSTICE HOLMES delivered the opinion of the court.
These cases arise out of the proceedings subsequent to the decision of this court in First National Bank of Chicago v. Chicago Title & Trust Co., 198 U.S. 280. In that case the Trust Company, as receiver, subsequently trustee, in bankruptcy, filed a petition in the District Court alleging possession of certain property and asking for directions in respect of a sale. The District Court found that a storage company had the possession and right of possession, but nevertheless retained jurisdiction and, a sale having been had by consent, made a summary order for transfer to the petitioner of part of the proceeds of the sale. An appeal was taken to the Circuit Court of Appeals, and that court sustained the jurisdiction of the District Court. On certiorari this court held that the Circuit Court of Appeals had no jurisdiction of the appeal and that the District Court, having found that the receiver and trustee was not in possession of the fund, had no jurisdiction to proceed further. It thereupon rendered a judgment and issued a mandate reversing the decree of the Circuit Court of Appeals, and directing that court to dismiss the appeal and to remand the case to the District Court for further proceedings in conformity with the opinion upon which the mandate was based.
The Circuit Court of Appeals thereupon dismissed the appeal and remanded the cause for further proceedings as directed. The opinion to which the proceedings of the District Court were to conform concluded with these words: "In our
view the District Court should have declined upon its findings to retain jurisdiction, and in that event the decree for the return of the money should have been without prejudice to the right of respondents to litigate in a proper court, which modification we direct to be made." The District Court made a decree "without prejudice to the rights of the Chicago Title and Trust Company, the trustee herein, if this court shall so authorize, to litigate in any proper court the question of the right of said trustee to recover said funds as a part of the bankrupt's general estate." The trustee complained of the form of this decree, especially because of the insertion of the words "if this court shall so authorize," and moved in this court for leave to file a petition for mandamus requiring the district judge to modify it, but leave was denied. 200 U.S. 613.
The trustee next made a similar application to the Circuit Court of Appeals, whereupon that court granted it and issued a peremptory writ requiring modifications to be made. 77 C.C.A. 408; 146 Fed. Rep. 742. The petitioners and plaintiffs in error, claiming an interest in the fund, then applied for leave to intervene for the purpose of prosecuting a writ of error, their application was allowed, and leave was granted them to sue out the writ, the order reciting that the district judge was present by counsel, but declined to sue out or join in the same. On the same day the Circuit Court of Appeals refused to make the writ act as a supersedeas, and on the next day the district judge entered a decree conforming to the mandate of the Circuit Court of Appeals. The present proceedings are brought for the purpose of reversing the action of the Circuit Court of Appeals and of reinstating the former decree of the District Court.
There is a motion to dismiss the writ of error on the grounds that the judge, who was the only party to the mandate alleged to be erroneous, did not sue out the writ, but that, on the contrary, he has obeyed the order, and that the plaintiffs in error are not privy to the judgment. We deem it a sufficient answer
to this motion to say that it appears on the record that the judge declined to join, Masterson v. Herndon, 10 Wall. 416; Hardee v. Wilson, 146 U.S. 179, that he has no personal interest in the judgment, Davis v. Mercantile Trust Co., 152 U.S. 590, 593, and that the plaintiffs have such an interest and were made parties for the purpose of protecting their rights. The fact that the judge obeyed the order in force against him cannot prejudice the position of the plaintiffs. They have the same interest in having the former decree of the District Court reinstated that they had in having it stand.
We are of opinion that the order of the Circuit Court of Appeals was wrong. The mandate of this court was addressed to it alone, it is true, in point of form. It is customary to issue but a single mandate. But the directions as to the further proceedings of the District Court were not an order to the Circuit Court of Appeals to issue an order to the District Court. They were directions which the Circuit Court of Appeals was simply to communicate to the District Court and which the District Court was to follow on the authority of this court, not of the Circuit Court of Appeals. The suggestion of the need of speedy relief seems to have counted for something in the making of the order appealed from, and the denial of a mandamus by this court was treated as an intimation that the final direction to the District Court was to be regarded as proceeding from the Circuit Court of Appeals. Such was not the import of the action of this court. The Circuit Court of Appeals had no jurisdiction in the matter, and the denial of a mandamus by this court did not confer or declare jurisdiction to grant what this court denied. It follows that the judgment of the Circuit Court of Appeals must be reversed.
As the judgment reversed has been acted upon by the District Court it becomes necessary to consider whether the former or the present decree of the District Court was the proper one to enter. The present one might be right notwithstanding the want of jurisdiction on the part of the higher ...