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EX PARTE STORY V. STORY, 37 U. S. 339 (1838)

U.S. Supreme Court

Ex Parte Story v. Story, 37 U.S. 12 Pet. 339 339 (1838)

Ex Parte Story v. Story

37 U.S. (12 Pet.) 339


A bill of exceptions is altogether unknown in chancery practice, nor is a court of chancery bound to inscribe in an order book, upon the application of one of the parties, an order which it may pass in a case before it.

The court refused to award a mandamus to the district judge of the District of Louisiana commanding him to sign a bill of exceptions tendered to him, and to command him to have inscribed, by the clerk of the court, on the order book of the court, an order passed by him, in a case which was before him under a mandate from the Supreme Court of the United States, requiring him to do and to have done certain matters to carry into effect the decree of the Supreme Court, in a case which had been brought before the Court of Appeal from the District of Louisiana.

At the time when a decree was made in the District Court of Louisiana in a case before it, the complainant was dead. The executrix was afterwards admitted by the district court to become a party to the suit, and prosecuted an appeal to the Supreme Court, where the decree of the district court was reversed on the merits, and the case was sent back to the district court on a mandate, requiring the decree of the Supreme Court to be carried into effect. The decease of the plaintiff before the decree, and his having left other heirs besides the executrix, was offered, in the form of a supplemental answer to the original bill, to the district court, when acting under the mandate of the Supreme Court, to show error in the proceedings of that court, with a view to bring the case again before the Supreme Court, in order to have a reexamination and a reversal of the decree of the court. The district court refused to permit the evidence of the matters alleged to be entered on the records of the court or to sign a bill of exceptions, stating that the same had been offered. The Court said, in the case of Skillern's Executors v. Mays Executors, 6 Cranch 267, it was said

"as it appeared that the merits of the case had been finally decided in this Court, and that its mandate required only the execution of the decree, the circuit court was bound to carry that decree into execution, although the jurisdiction of the court was not alleged in the pleadings."

In the case now before the court, the merits of the controversy were finally decided by this Court, and its mandate to the district court required only, the execution of the decree. On the authority of this case, the refusal to allow the defendant to file a supplemental answer and plea, was sustained.

The case of Louise Livingston, executrix of Edward Livingston, deceased, was before this Court at the January term, 1837, on the appeal of Mrs. Livingston, as administratrix, against Benjamin Story from the District Court of the United States for the Eastern District of Louisiana. 36 U. S. 11 Pet. 351.

Page 37 U. S. 340

The decree of the District Court of Louisiana was reversed and the case was sent back to that court on a special mandate from this Court.

Page 37 U. S. 341

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