APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
By section 4 of the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, 827, it was provided that the review, by appeal, by writ of error, or otherwise, from the existing Circuit Courts, shall be had only in the Supreme Court of the United States, or in the Circuit Court of Appeals hereby established, according to the provisions of this act regulating the same. Section 5 enumerated the classes of cases in which appeals or writs of error might be taken from the Circuit Courts direct to this court; and section 6 provided that the Circuit Courts of Appeals should exercise appellate jurisdiction to review by appeal or by writ of error final decisions of the Circuit Courts "in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law." By section 14, "all acts and parts of acts relating to appeals or writs of error inconsistent with the provisions for review by appeals or writs of error in the preceding sections 5 and 6 of this act" were repealed.
In Lau Ow Bew v. United States, 144 U.S. 47, 56, it was held that "the words 'unless otherwise provided by law' were manifestly inserted out of abundant caution, in order that any qualification of the jurisdiction by contemporaneous or subsequent acts should not be construed as taking it away except when expressly so provided. Implied repeals were thereby intended to be guarded against. To hold that the words referred to prior laws would defeat the purpose of the act and be inconsistent with its context and its repealing clause."
By joint resolution of March 3, 1891, it was provided "that nothing in said act shall be held or construed in anywise to impair the jurisdiction of the Supreme Court or any Circuit Court of the United States in any case now pending before it," and it was added, "or in respect of any case wherein the writ of error or the appeal shall have been sued out or taken
to any of said courts before the first day of July, anno Domini eighteen hundred and ninety-one."
The act of March 3, 1891, went into immediate operation. In re Claasen, 140 U.S. 200.But the jurisdiction of this court having been preserved in respect of writs of error or appeals sued out or taken before July 1, 1891, by the joint resolution, we had jurisdiction of the appeal of Marcus which was taken June 12 of that year. This case does not come within either of the classes of cases specified in section 5, and the appeal was not prayed until August 20, 1893. It must therefore be dismissed. National Exchange Bank v. Peters, 144 U.S. 570; Wauton v. De Wolf, 142 U.S. 138; Ogden v. United States, 148 U.S. 390; Aspen Co. v. Billings, 150 U.S. 31; Voorhees v. Noyes Manf'g Co., 151 U.S. 135; Nashua & Lowell Railroad v. Boston & Lowell Railroad, 5 U.S. App. 97. It is said, however, that the disposition of the case involved the construction and application of the mandate of this court as to costs. If it could be contended that our mandate had been misconstrued or disregarded, this would not give complainants the right of appeal after July 1, 1891, but the remedy would be by mandamus. City Bank v. Hunter, 152 U.S. 512. Lest, however, appellants might unnecessarily seek a review of the matter in that form of procedure, we deem it proper to say that the Circuit Court was right in the view taken of the mandate. The remedy of appellants lay in an appeal to the Circuit Court of Appeals for the Sixth Circuit.
In Texas & Pacific Railway v. Anderson, 149 U.S. 237, the action of the Circuit Court conformed to the mandate, and there were no proceedings subsequent thereto not settled by the terms of the mandate itself, and we therefore held, upon the authorities cited and for the reasons given, that, on the facts appearing in that record, the Circuit Court of Appeals could not review by writ of error the judgment of the Circuit Court. But in this case the Circuit Court was at liberty to consider, as it did, the application for an allowance out of the fund on the footing of costs between solicitors and clients, and its action in that regard was open to review in the Circuit Court of Appeals.
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