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HINCKLEY V. MORTON, 103 U. S. 764 (1880)

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U.S. Supreme Court

Hinckley v. Morton, 103 U.S. 764 (1880)

Hinckley v. Morton

103 U.S. 764

MOTION TO DISMISS APPEAL

Motion to dismiss an appeal from the Circuit Court of the United States for the Southern District of Illinois, with which is united a motion to affirm.

MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.

Our jurisdiction of this case is clear. The appeal is not from the decree entered on our mandate at the last term in Hinckley v. Railroad Company, 100 U. S. 153. On the contrary, that decree has been satisfied by an actual payment of the amount found due. The case does not, therefore, come within the rule laid down in Stewart v. Salamon, 97 U. S. 361, where we held that an appeal would not be entertained from a decree rendered by the court below in accordance with our mandate on a previous appeal. The record now presented shows that after our decision at the last term, in which, among other things, Hinckley, the appellant, was allowed $10,000 for his services as receiver from the time of his appointment in the Kelly suit, he went into the state court and had that suit reinstated. He then applied to that court to fix his compensation as receiver. That was done, and resulted in an allowance to him of something more than $24,000. As soon as that order in his favor was made, he filed an intervening petition in the circuit court, asking that the amount so allowed him might be paid out of the fund in the circuit court belonging to the Morton suit. This chanroblesvirtualawlibrarychanroblesvirtualawlibrary

Page 103 U. S. 765

was refused, and from the order to that effect, which was a final decree on the intervening petition, this appeal was taken. Second appeals have always been allowed to bring up proceedings subsequent to the mandate and not settled by the terms of the mandate itself. Supervisors v. Kennicott, 94 U. S. 498; Tyler v. Magwire, 17 Wall. 53. This case comes clearly within that rule, and the motion to dismiss is therefore denied.

But we think the motion to affirm should be granted. The question of compensation to the receiver, so far as the fund in the circuit court is concerned, was settled on the former appeal. The allowance then made was for the entire services of the receiver from the date of his original appointment in the Kelly suit. The value of the services was made, by the exceptions to the master's report, a matter of special inquiry, and the result is indicated in the judgment which was then given. If the state court has funds in its hands out of which its judgment can be paid, it has full power to order the payment, but the liability of the fund in the circuit court to the receiver has already been fully discharged. The court below was right, therefore, in refusing the prayer of the appellant in his intervening petition, and its order to that effect is





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