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Milwaukee & Minnesota R. Co. v. Soutter, 69 U.S. 2 Wall. 440 440 (1864)

Milwaukee & Minnesota R. Co. v. Soutter

69 U.S. (2 Wall.) 440




An order of the circuit court, on a bill to foreclose a mortgage, ascertaining -- in intended execution of a mandate from this Court -- the amount of interest due on the mortgage, directing payment within one year, and providing for an order of sale in default of payment, is a "decree" and a "final decree," so far as that any person aggrieved by supposed error in finding the amount of interest, or in the court's below having omitted to carry out the entire mandate of this Court, may appeal. Appeal is a proper way in which to bring the matter before this Court.

A decree had been made some time since in this Court against the La Crosse & Milwaukee and the Milwaukee & Minnesota Railroad Companies, the road being then in the hands of a receiver, on a bill in equity, filed in the Federal Court of Wisconsin, to foreclose a mortgage given by the former company on its road &c., to two persons, named Bronson and Soutter (of whom the former was now dead), to secure certain bonds which the former road had issued, on which the interest was unpaid.

The mandate to the court below, ran thus:

"It is ordered that this cause be remanded &c., with directions to enter a decree for all the interest due, and secured by the mortgage, with costs, that the courts ascertain the amount of moneys in the hands of the receiver or receivers, from the earnings of the road covered by the mortgage, which may be applicable to the discharge of the interest, and apply it to the same, and that if the

Page 69 U. S. 441

money thus applied is not sufficient to discharge the interest due on the first day of March, 1864, then to ascertain the balance remaining due at that date. And in case such balance is not paid within one year from the date of the order of the court ascertaining it, then an order shall be entered, directing a sale of the mortgaged premises."

The court below, acting under this mandate and intending to execute it, did ascertain the amount of interest due, and directed payment within a year, and provided for an order of sale in default of payment, but that court did not ascertain the amount of money in the hands of the receiver or receivers or apply any such amount in reduction of interest, or find the balance due on the first of March or at the date of the order. The amount of interest was ascertained, and an order of sale provided for in default of payment within one year; nothing more.

From this order of the court below the railroad company took an appeal here, which appeal a motion was made on behalf of Soutter & Bronson to dismiss.

Page 69 U. S. 443

THE CHIEF JUSTICE delivered the opinion of the Court, announcing that the order in question was a decree, and was a final decree, from which any party aggrieved by supposed error in finding the amount of interest, or in omitting to ascertain and apply to the reduction or discharge of interest the amount of moneys in the hands of the receiver or receivers, might appeal. The ruling of this Court in Perkins v. Fourniquet, cited by the appellant's counsel, was a full and direct sanction to this conclusion.

Motion denied.


For greater caution, Mr. Carpenter, before this motion was heard, had moved for a mandamus to vacate the already mentioned order of the circuit court. The appeal being allowed, that motion was of course refused, THE CHIEF JUSTICE, in announcing such refusal, saying that it was made without expressing

Page 69 U. S. 444

any opinion as to the applicability of that remedy to the case before the court.

[For a further part of this case, and for the reasons and justification (under the special facts) of the court below in executing the mandate as it did, see Railroad Company v. Soutter, infra, p. <|69 U.S. 510|>510.]

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