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U.S. Supreme Court

Washington Bridge Company v. Stewart, 44 U.S. 3 How. 413 413 (1845)

Washington Bridge Company v. Stewart

44 U.S. (3 How.) 413




After a case has been decided upon its merits and remanded to the court below, if it is again brought up on a second appeal, it is then too late to allege that the court had not jurisdiction to try the first appeal.

The Supreme Court has no power to review its decisions, whether in a case at law or in equity. A final decree in chancery is as conclusive as a judgment at law.

An affirmance by a divided Court, either upon a writ of error or appeal, is conclusive upon the rights of the parties.

This same case was before the Court at January term, 1840, and the decree of the court below affirmed by the Supreme Court, but in consequence of the Court's being equally divided, no opinion was given, and no report of the case published. It now came up on an allegation that it was improperly brought up before, as the decree, from which the appeal was taken, was said not to be a final decree.

The case was this:

The Washington Bridge Company were the owners of a bridge across the Potomac River, under a charter granted in 1808. In February, 1831, a large part of the bridge was broken up and carried away by the ice and flood, and in April, the president and directors called for an installment of ten dollars per share from the stockholders, for the purpose of repairing it. The defendants in error did not pay, and their shares were forfeited on 21 June, 1832, under the 8th section of the charter.

On 14 July, 1832, Congress passed an act to purchase the bridge, and appropriated $20,000 for that purpose, which they directed to be divided among the stockholders in the manner therein pointed out.

In May, 1833, the defendants in error filed a bill in the circuit

Page 44 U. S. 414

court claiming to be stockholders, and, as such, to be entitled to a distributive share of the purchase money. The bridge company resisted the claim on the ground that their shares had been forfeited, and in November, 1838, the cause came on for hearing on the bill, answers, exhibits, depositions, and general replication, when the court made the following decree:

"This cause having been set for hearing upon the bill, answer, general replication, exhibits, and evidence, and coming on to be heard and argued by counsel, it is, on this twenty-ninth day of November in the year eighteen hundred and thirty-eight, after full consideration, ordered, decreed, and adjudged, that the rights and interests of the complainants, and the other stockholders in said bill of complaint mentioned, and who have come in or may come in before the final determination of this cause, and procure themselves to be made parties to these proceedings, have not been and were not forfeited under and by virtue of the proceedings of said bridge company, stated and set forth in the said answer, and exhibits, and evidence, but that the same remain in full force and virtue, and that the said parties are respectively entitled to their proportion of the sum of $20,000, mentioned and stated in said bill of complaint as stockholders in said company, and that, in order to fix and adjust the said proportions or shares of said parties, there be first deducted the sum of $10,561.55, mentioned in said answer, being the sum advanced by certain stockholders, as therein mentioned, with interest thereon from the time the same was advanced to the time of the receipt of the said $20,000, being an average of nine months, for which said interest is to be calculated; also the sum of $568.25, being the amount of unclaimed dividends expended on the said bridge, with interest thereon from the time of said expenditure to the receipt of said $20,000, and that subject to such deductions, and, after the same shall have been made, the said complainants are respectively entitled to, and shall receive, their full share and proportion of the interest on the same, which shall have been earned and made of the said sums so due to them respectively pending this suit, under the investment made thereof by complainants."

"And it is ordered, that other items claimed to be deducted be rejected, no evidence having been offered to show their character or their amount."

"And it is further ordered, that the case be referred to the auditor, to state an account in conformity with the principles laid down in this decree."

From this decree the bridge company prayed an appeal to the Supreme Court, where, as has already been stated, it was affirmed by a divided Court.

In April, 1840, the case was referred by the circuit court to the auditor, who made the following report in November, 1841:

"The undersigned auditor, to whom was referred the papers in

Page 44 U. S. 415

this cause on 29 April, 1840, has had the same under examination, and, after a full consideration of the same, begs leave to make the following report:"

"That the amount of funds in the hands of Frederick May, President and Treasurer of the Washington Bridge Company, including interest on corporation stock received and to be received, on 30 June, 1841, is $22,221.52. That the amount refunded the stockholders of fifteen hundred and nineteen shares, which they had advanced towards repairing the bridge, with interest thereon according to the decree; the amount of unclaimed dividends which had been expended for said repair, and also directed to be refunded with interest for nine months; for debt due from the bridge company, including costs of suit; the trustee's commission, auditor's bill &c., and the payment to said fifteen hundred and nineteen shareholders of ten percent upon the cost of their stock, as per statement herewith submitted, amount to $18,991.11, leaving a balance in the trustee's hands of $3,222.41."

"That the holders of the four hundred and seventy-three shares, which were deemed by the company to have been forfeited (but which the court decided were not forfeited), according to the cost of the same, amount to $20,749.17, ten percent on the same (being the dividend paid to the first-mentioned stockholders) amounts to $2,074.91, as per statement B herewith, leaving a balance, after paying said amount, in the hands of the trustee of $1,147.50."

"In ascertaining the cost of the shares to the present claimants, the auditor has taken pains, as far as possible, to ascertain the same. The principal claimants are John Glenn and the Messrs. Stewarts. In the case of Mr. Glenn, he states on oath, that the stock belongs to the estate of Robert Barry, and is held by him as trustee or administrator. Barry was an original subscriber. In the case of the Stewarts, they claim as having obtained it from D. Stewart's estate in the course of distribution, not as purchaser. D. Stewart was an original subscriber. In all other cases, the scale furnished from the president of the company of the current price of the stock at the periods of transfer, have been the sole guide by which to fix the value. Several of the stockholders on the list are known to be dead, and it is not known to the auditor who their representatives are; but in making a distribution of this fund, their rights ought to be preserved, and their fair dividend paid when demanded."

"Dr. May, the trustee, claims $1,000 for his commission on the money received from the Treasury, $20,000, for the sale of the bridge. The charge has been objected to by some of the claimants, and the auditor has reduced it to $500; if he has erred in this, the court can correct it."

"The amount of the unclaimed dividends used for repairing the bridge, $568.25, and nine months' interest thereon, $25.57, making $593.82, has been in part paid, but a very considerable part, in all probability, never will be called for, as many of the persons who

Page 44 U. S. 416

were entitled to it are dead, and some insolvent; their representatives knowing nothing of the small amount so many years due. The complainants, however, in the present cause, have no claim on the unclaimed money due to others."

"As regards the disposition to be made of the balance which will remain in the hands of the trustee ($1,147.50) after paying the stockholders ten percent, the auditor begs reference to his remarks on the general statement herewith."

"Submitted by"


Whereupon the court made the following decree in the premises:

"The report of the auditor in this case having been filed, together with the accompanying statements by him made, and constituting part of the same, and being fully considered by the court, it is, this fourth day of June, eighteen hundred and forty-two, ordered and decreed, that the same be, and it is in all respects confirmed. And the said cause coming on for final hearing upon the bill, answer, replication, exhibits, evidence, report of auditor &c., and being maturely considered, it is further ordered, adjudged, and decreed, that the complainants are entitled to the relief prayed, in conformity with the report of said auditor as aforesaid, and that the relief be extended to the other stockholders in said company in the proportions and for the sums mentioned in the statement by the auditor of the stockholders in said company who have not participated in the dividends of said bridge company. And it is further ordered and decreed, that the said defendants pay over to said parties respectively, or to their solicitors on record, the said sum so due to them respectively, in conformity with said report and statement and of this decree, together with the costs of this suit to be taxed by the clerk, including the costs of the Supreme Court, on or before the first day of July, 1842, and file with said clerk, on or before said first day of July, 1842, a statement of said payments so made."

"By order of the court."

From this decree the bridge company appealed to the Supreme Court.

Page 44 U. S. 424

MR. JUSTICE WAYNE delivered the opinion of the Court.

This cause is now before us upon an appeal from a decree of the circuit court, made by it upon an auditor's report, in conformity with the mandate issued by this Court, when the cause was before it upon a former occasion.

The appellants did not except to the auditor's report, in the court below. When the cause was tried upon the first appeal, the decree of the circuit court was affirmed by a divided court.

We are now asked by the counsel for the appellants to permit him to reexamine the decree of the circuit court, upon its merits, affirmed as it was by the Supreme Court, upon the ground that the affirmance was made when this Court had not jurisdiction of the case, the first appeal having been taken upon what has since been discovered to have been an interlocutory and not a final decree.

The Supreme Court certainly has only appellate jurisdiction, where the judgment or decree of the inferior court is final. But it does not follow, when it renders a decree, upon an interlocutory and not a final decree, that it can, or ought, on an appeal from a decree in the same cause, which is final, examine into its jurisdiction upon the former occasion. The cause is not brought here in such a case for any such purpose. It was an exception, of which advantage might have been taken by motion on the first appeal. The appeal would then have been dismissed for the want of jurisdiction, and the cause would have been sent back to the circuit court for farther proceedings. But the exception not having been then made of the alleged want of jurisdiction, the cause was argued upon its merits, and the decree appealed from was affirmed by this Court. Its having been affirmed by a divided court, can make no difference as to the conclusiveness of the affirmance upon the rights of the parties. It is settled, that when this Court is equally divided upon a writ of error or appeal, the judgment of the court below stands affirmed. @ 24 U. S. 10 Wheat. 431. Its decree became a matter of record in the highest court in which the cause could be finally tried. To permit afterwards, upon an appeal from proceedings upon its mandate, a suggestion of the want of jurisdiction in this Court, upon the first appeal, as a sufficient cause for reexamining the judgment then given, would certainly be a novelty in the practice of a court of equity. The want of jurisdiction is a matter of abatement, and that is not capable of being shown for error to endorse a decree upon a bill of review. Shall the appellant be allowed to do more now than would be permitted on a bill of review if this Court had the power to grant him such a remedy? If he was, we should then have a mode for the review of the decrees

Page 44 U. S. 425

of this Court, which have become matters of record, which could not be allowed as an assignment of error for a bill of review in any of those courts of the United States in which that proceeding is the ordinary and appropriate remedy.

The application has been treated in this way to show how much at variance it is with the established practice of courts of equity.

It might, however, have been dismissed, upon the authority of a case in this Court directly in point, Skillern's Executors v. May's Executors, 6 Cranch 267, and upon the footing that there is no mode pointed out by law, in which an erroneous judgment by this Court can be reviewed in this or any other court. In Skillern's Case, the question certified by the court below to this Court for its decision was, whether the cause could be dismissed from the circuit court, for want of jurisdiction, after the cause had been removed to the supreme court, and this Court had acted upon and remanded the cause to the circuit court, for further proceedings. This Court said,

"It appearing that the merits of the cause had been finally decided in this Court, and that its mandate required only the execution of its decree, it is the opinion of this Court that the circuit court is bound to carry that decree into execution, although the jurisdiction of that court is not alleged in the pleading."

The jurisdiction of this Court in that case was as defective as it is said to have been in this. When that cause was before this Court, though the judgment of the court below on it would have been reversed, upon motion, for the want of jurisdiction on the face of the record, the defect having escaped the notice of the court and of counsel and the court having acted upon its merits, it determined that its decree should be executed. The reason for its judgment no doubt was that the motion to dismiss the case in the court below for the want of jurisdiction after it had been before the Supreme Court by writ of error and had been acted upon would have been equivalent, had it been allowed, to a decision that the judgment of this Court might be reviewed, when the law points out no mode in which that can be done, either by this or any other court. The want of power in this Court to review its judgments or decrees has been so frequently determined by it that it is not now an open question. Such is the result of what the Court said in Himely and Rose, 5 Cranch 314. The Court said in Martin v. Hunter's Lessee, 1 Wheat. 304, in reply to the allegation that its judgment had been rendered when it had not jurisdiction,

"To this argument several answers may be given. In the first place, it is not admitted that upon this writ of error the former record is before us. In the next place, in ordinary cases, a second writ of error has never been supposed to draw in question the propriety of the first judgment, and it is difficult to perceive how such a proceeding could be sustained on principle. A final judgment of this Court is supposed to be conclusive upon the rights it decides, and no statute has provided any process by which this Court can reverse its

Page 44 U. S. 426

judgments. In several cases formerly adjudged in this Court, the same point was argued, and expressly overruled. It was solemnly held that a final judgment of this Court was conclusive upon the parties, and could not be reexamined."

In Browder v. McArthur, 7 Wheat. 58, counsel applied for a rehearing, the Court refused it, saying a subsequent appeal brought up only the proceedings subsequent to the mandate, and did not authorize an inquiry into the merits of the original decree. The same is said with equal positiveness in the case of The Santa Maria, 10 Wheat. 442. To these cases we add an extract from the opinion of the Court, given by the late Mr. Justice Baldwin in Ex Parte Sibbald, 12 Pet. 492. That case called for the most careful consideration of the Court.

"Before we proceed to consider the matter presented by these petitions, we think it proper to state our settled opinion of the course which is prescribed by the law for this Court to take, after its final action upon a case, brought within its appellate jurisdiction, as well as that which the court, whose final decree or judgment has been thus verified, ought to take. Appellate power is exercised over the proceedings of inferior courts, not on those of the appellate court. The Supreme Court has no power to review its decisions, whether in a case at law or in equity. A final decree in chancery is as conclusive as a judgment at law. 14 U. S. 1 Wheat. 355; 19 U. S. 6 Wheat. 113, 19 U. S. 116. Both are conclusive of the rights of the parties thereby adjudicated."

These cases are decisive of the motion made in this case, and as the decree now appealed from carries into execution the mandate issued by this Court upon the first appeal, we direct it to be


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