compliance with such a mandate. Because, therefore, as libellant contends, this Court must still act in obedience to the mandate, he argues that this Court has authority to modify its previous judgment insofar as the quantum of its award of damages is concerned. Such a contention appears to be completely at variance with accepted precedent.
In Butcher & Sherrerd v. Welsh, 3 Cir., 1953, 206 F.2d 259, certiorari denied sub. nom. Alker v. Butcher & Sherrerd, 346 U.S. 925, 74 S. Ct. 312, 98 L. Ed. 418 rehearing denied 347 U.S. 924, 940, 74 S. Ct. 513, 98 L. Ed. 1078, 348 U.S. 939, 75 S. Ct. 354, 99 L. Ed. 736, vacated on other grounds 3 Cir., 223 F.2d 262, Judge Kalodner, speaking for the Court, enunciates the following principle, 206 F.2d at page 262.
'Where a judgment has been affirmed on appeal and the mandate handed down it is beyond the power of the lower court to disturb the judgment without leave of the appellate court. This procedure is required by long settled principles.'
There are cited in the opinion quoted from, in support of the principles stated, Simmons Co. v. Grier Bros. Co., 1922, 258 U.S. 82, 42 S. Ct. 196, 66 L. Ed. 475; National Brake & Electric Co. v. Christensen, 1921, 254 U.S. 425, 41 S. Ct. 154, 65 L. Ed. 341; In re Potts, 1897, 166 U.S. 263, 17 S. Ct. 520, 41 L. Ed. 994; Brady v. Beams, 10 Cir., 1943, 132 F.2d 985; and Simonds v. Norwich Union Indemnity Co., 8 Cir., 1934, 73 F.2d 412.
In the Butcher & Sherrerd case (supra), a judgment had been entered in the District Court and the judgment was affirmed by the Court of Appeals, which remanded the case to the District Court. Thereafter, and without first obtaining the authority of the appellate court, the judgment defendants obtained an order from the District Court granting a new trial. Because of its determination that the District Judge was without jurisdiction to grant the new trial after remand on affirmance, writs of mandamus and prohibition were ordered to be issued for the reason stated by Judge Kalodner in the above quoted excerpt from his opinion.
In the case before me, this Court entered a final judgment as long ago as August 15, 1956. The effectiveness of that judgment was in suspension during the appeal to the Court of Appeals and thereafter upon certiorari from the Supreme Court. The latter Court affirmed the judgment of this District Court and directed its reinstatement. The word 'reinstatement' is not a term of art, but rather a word in common parlance. 'To reinstate is to restore to a former state or authority.' Funk & Wagnall's New Standard Dictionary of the English Language, 1944 Ed. I am, therefore, impelled to the conclusion that I am without jurisdiction at this time to modify the judgment of this Court which has been affirmed by the Supreme Court of the United States, and the efficacy of which has been reinstated by the latter's mandate.
Libellant's motion to increase the damage award is denied.
Fisser's Motion for Counsel Fees.
Claimant-respondent's application for counsel fees has previously been decided by this Court adversely to that applicant, upon return of its notice for taxation of costs. The record presently before me is silent respecting any discussion of such an application when the case was before the Supreme Court. The instant application is in the nature of a petition for rehearing upon the issue of the right to counsel fees as part of the costs taxed in favor of the claimant-respondent. The allowance of a counsel fee at this stage of the litigation would necessarily involve a revision and modification of the judgment which was affirmed and reinstated by the Supreme Court. For the reasons previously stated, I am of the opinion that I am without jurisdiction to so modify the judgment in this case. See Kansas City Southern Railway Co. v. Guardian Trust Co., 1930, 281 U.S. 1, 11, 50 S. Ct. 194, 74 L. Ed. 659. Sprague v. Ticonic National Bank, 1939, 307 U.S. 161, 59 S. Ct. 777, 780, 83 L. Ed. 1184, relied upon by claimant-respondent on its instant application is not only distinguishable factually from the situation presently confronting us, but indeed expresses the general rule that allowances for counsel fees 'are appropriate only in exceptional cases and for dominating reasons of justice.' Kemart Corp. v. Printing Arts Research Laboratories, Inc., 9 Cir., 1956, 232 F.2d 897, 57 A.L.R.2d 1234, also relied upon by claimant-respondent, presents no precedent for the relief here sought. A/S J. Ludwig Mowinckels Rederi v. Commercial Stevedoring Co., Inc., 2 Cir., 1958, 256 F.2d 227, certiorari dismissed 358 U.S. 801, 79 S. Ct. 9, 3 L. Ed. 2d 49, and Shannon v. United States, 2 Cir., 1956, 235 F.2d 457, involved indemnity agreements expressly undertaking reimbursement for counsel fees as between vessel owners and stevedores. Neither of these cases, nor that of Frommeyer v. L. & R. Construction Co., Inc., 3 Cir., 1958, 261 F.2d 879, cited by claimant-respondent, suffices to persuade me that the instant motion of claimant-respondent should be granted. It is therefore denied.
Appropriate orders in conformity with the views hereinabove expressed may be presented.
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