« EdellinenJatka »
Opinion of the Court.
tiffs therein; and that it was not until he was informed of that decree, which was in July, 1886, that he received any knowledge or information of the conveyances and transfers of Smith's property, or of any facts or circumstances relating thereto or tending to show, or to lead to inquiry as to, any fraudulent conveyance, transfer, or disposition of property by Smith.
But this is not sufficient to avoid the allegation of laches in bringing the present suit, or to bar the application of $ 5057 of the Revised Statutes in regard to the two years' limitation. Bailey v. Glover, 21 Wall. 342; Wood v. Carpenter, 101 U. S. 135; Kirby v. Lake Shore Railroad, 120 U. S. 130; Norris v. Haggin, 136 U. S. 386.
Although this court has attached to $ 5057 of the Revised Statutes a qualification, that qualification is that where relief is sought on the ground of fraud, it is necessary, in order to postpone the right of action on the part of the assignee in bankruptcy until the discovery of the fraud, that ignorance of it should have been produced by affirmative acts of the guilty party, in concealing the facts, and that there should have been no fault or want of diligence or care on the part of the person who claims the right of action; in other words, that when there has been no negligence or laches on the part of a plaintiff in coming to the knowledge of the fraud which is the foundation of the suit, and when the fraud has been concealed, or is of such character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to, the party suing, or those in privity with him, or ought to have been so discovered or known.
In the present case, the deeds of conveyance by Smith were recorded. The suit by the Kittels was a public suit. Notice of lis pendens was filed in it, giving the name and the address of the attorney for the plaintiffs, and they were creditors through whom the present plaintiff claims, their names being included as creditors in the bankruptcy schedules. Charles Jones, the assignee in bankruptcy, was a lawyer of long standing, familiar with such matters. The bill does not set forth what were the impediments to an earlier prosecution of
Statement of the Case.
the claim, how the plaintiff came to be so long ignorant of his rights, the means, if any, used by the defendants fraudulently to keep him in ignorance, or how and when he first obtained knowledge of the matters alleged in his bill. Badger v. Badger, 2 Wall. 87, 95; Richards v. Mackall, 124 U. S. 183, 189; Greene v. Taylor, 132 U. S. 415, 443.
We think the present is a clear case in favor of the bar of limitation, both by the statute of New York and by the bankruptcy statute.
TEXAS & PACIFIC RAILWAY COMPANY v.
A Circuit Court of Appeals cannot review by writ of error the judgment of
a Circuit Court of the United States, in execution of a mandate of this court, when the action of the Circuit Court conforms to the mandate, and there are no proceedings subsequent thereto, not settled by the terms
of the mandate itself. The mandate in this case having stated that the receiver, against whom the
action was originally brought, had been discharged and had died, and that the Railway Company had been made the party plaintiff in error, and having ordered that the plaintiff recover against the Railway Company her costs expended herein and have execution therefor, further ordered “ that such execution and proceedings be had in said cause as according to right and justice and the laws of the United States ought to be had.” Execution accordingly issued against the company for the amount of the judgment with interest at the rate which obtained in Texas when the judgment was rendered. Held, that this action conformed to the mandate, and was not subject to review by the Circuit Court of Appeals.
On September 13, 1888, judgment was rendered in the Circuit Court of the United States for the Eastern District of Texas against John C. Brown and Lionel A. Sheldon as
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receivers of the Texas and Pacific Railway Company in favor of Ida May Cox for $10,000, with interest from date at eight per cent per annum, the then rate of interest in Texas, "to be paid in due course of their administration of their receivership.” Sheldon having resigned as receiver and his resignation having been accepted, Brown, as sole receiver, prosecuted a writ of error from this court and gave a supersedeas bond. While the writ of error was pending the receiver made known to the Circuit Court that the objects and purposes contemplated in the several proceedings under which he had been appointed had been accomplished by settlement and agreement of the parties, and he was thereupon discharged as receiver and the property restored to the company. Subsequently, and before the case came on for hearing, the receiver died. Thereafter defendant in error filed a motion in this court to have the railroad company substituted in place of the receiver, and an order of substitution was entered by this court upon suggestion of the discharge and death of said receiver.
At the time of that order a stipulation, signed by counsel on both sides, was filed, which read as follows: "That the said Texas and Pacific Railway Company may be substituted as plaintiff in error in the above-entitled cause now pending and undetermined upon writ of error in this court, such substitution, however, not to affect any of the questions or controversies presented by the record herein, and the questions and controversies presented by the record are to stand for the decision of this court the same as if said substitution bad not been made."
The cause having been argued the judgment was affirmed May 16, 1892. Texas & Pacific Railway v. Cox, 145 U. S. 593, 601.
On May 19, 1892, the mandate of this court was issued, directed to the Circuit Court of the United States for the Eastern District of Texas, which, after reciting the judgment of that court against the receivers and the writ of error prosecuted by the remaining receiver, proceeded thus:
“And whereas at the October term, a. D. 1889, of said Supreme Court, the discharge of John C. Brown as receiver of the Texas and Pacific Railway Company, and also his death,
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having been suggested, it was ordered that the Texas and Pacific Railway Company be made the party plaintiff in error
in this cause;
"And whereas in the present term of October, in the year of our Lord one thousand eight hundred and ninety-one, the said cause came on to be heard before the said Supreme Court on the said transcript of record, and was argued by counsel;
“On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs and interest until paid, at the same rate per annum that similar judgments bear in the courts of the State of Texas, and that the said plaintiff recover against the said the Texas and Pacific Railway Company for her costs herein expended, and have execution therefor. May 16, 1892.
“You, therefore, are hereby commanded that such execution and proceedings be had in said cause as according to right and justice and the laws of the United States ought to be had, the said writ of error notwithstanding."
Pending the writ of error, the defendant Ida May Cox intermarried with one Scott Anderson. Upon reception of the mandate, execution was issued by the clerk of the Circuit Court of the United States for the Eastern District of Texas against the Texas and Pacific Railway Company for the full amount of the judgment with eight per cent interest and costs. The company thereupon filed its bill against the marshal in whose hands the execution had been placed, asking that he be restrained from levying the same upon the ground that there was no judgment to support the execution. A restraining order was granted, which was continued in force until November 22, 1892, when it was dissolved. On that day Mr. and Mrs. Anderson filed a motion that execution should issue in their names against the defendant company. This motion was resisted but the objections of the company thereto were overruled, and the court entered an order directing the clerk to record the mandate and to issue execution against the company for the sum recovered with interest at eight per cent from the date of the original judgment, and
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costs, to which action of the court the company excepted, and a bill of exceptions having been signed and approved, a writ of error was allowed from the Circuit Court of Appeals for the Fifth Circuit. The case came on to be heard in that court upon the motion of the defendants in error to dismiss the writ of error for want of jurisdiction and upon the merits, whereupon the court granted a certificate stating the facts as above given, though with greater particularity, which concluded as follows:
“Whereupon, the court desiring the instruction of the honorable the Supreme Court of the United States for the proper decision of the questions arising herein, it is hereby ordered that the following questions and propositions of law be certified to the honorable the Supreme Court of the United States in accordance with the provisions of section 6 of the act entitled 'An act to establish Circuit Courts of Appeals and define and regulate in certain cases the jurisdiction of the Circuit Courts of the United States, and for other purposes,' approved March 3, 1891, to wit:
“First. Does the act of March 3, 1891, entitled 'An act to establish Circuit Courts of Appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,' give to said Circuit Courts of Appeals jurisdiction by appeal or writ of error or otherwise to review the decrees, orders, or judgments made by District Courts or existing Circuit Courts construing a mandate from the Supreme Court of the United States and in executing the same?
“Second. Was it the intention of the Supreme Court of the United States in affirming the judgment in the case of John "C. Brown, plaintiff in error, v. Ida May Cox, defendant in error, that said judgment should be subject to the general equitable jurisdiction of the court in which such receiver was appointed and be paid in due course of the administration of said receivership, or did it intend that execution should issue directly against the Texas and Pacific Railway Company for the amount of said judgment ?
“Third. At the date said judgment was originally recovered, to wit, September 15, 1888, it bore interest under the law of