Favour v. Hill

Ninth Circuit

Favour v. Hill

136 F.2d 489, 1943 U.S. App. LEXIS 3078

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 21, 1943

DocketNo. 9847

StatusPublished

This text of 136 F.2d 489 (Favour v. Hill) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Favour v. Hill, 136 F.2d 489, 1943 U.S. App. LEXIS 3078 (9th Cir. 1943).

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Opinion

DENMAN, Circuit Judge.

Petitioners seek to have us make what they call a “directive” to the district court or “other order” requiring obedience to our mandate to that court. Favour v. Hill, 123 F.2d 77. Our mandate ordered the allowance of petitioners’ claim in a receivership proceeding, the claim being for “$1,000.00, with interest at 6% from January 1, 1934, until paid, • together with $38.61 costs.”

Petitioners’ petition sets forth an order of the district court denying a petition to that court to have the claim, which clearly included interest from January 1, 1934, allowed as including such interest. No reason is given in the order complained of for not following the requirement of the mandate. Respondent’s objections do not deny the allegations concerning the action by the district court.

Petitioners’ petition here shows no more than such denial by the district court of their petition there. It does not show what order, if any, was entered pursuant to the mandate. When entered it is a final judgment from which petitioners have the right to appeal if the mandate is not followed, or to seek our writ of mandamus in aid of our appellate jurisdiction, exercised in our decision and mandate to the court. Cf. Baltimore & O. R. Co. v. United States, 279 U.S. 781, 785, 49 S.Ct. 492, 73 L.Ed. 954.

So far as concerns mandamus, the appeal was decided, and the mandate was issued November 17, 1941. Assuming, but not deciding, that, after the expiration of the 1941 term, in aid of our appellate jurisdiction exercised in the decision and mandate, we have the power to issue the writ of mandamus to require obedience of the mandate, we decline to consider its issuance, believing the expression of our views sufficient for the guidance of the district court. Cf. Mulhens & Kropff, Inc., v. Ferd Muelhens, Inc., 2 Cir., 48 F.2d 206, 207.

The petition is denied.

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DENMAN, Circuit Judge.

Petitioners seek to have us make what they call a “directive” to the district court or “other order” requiring obedience to our mandate to that court. Favour v. Hill, 123 F.2d 77. Our mandate ordered the allowance of petitioners’ claim in a receivership proceeding, the claim being for “$1,000.00, with interest at 6% from January 1, 1934, until paid, • together with $38.61 costs.”

Petitioners’ petition sets forth an order of the district court denying a petition to that court to have the claim, which clearly included interest from January 1, 1934, allowed as including such interest. No reason is given in the order complained of for not following the requirement of the mandate. Respondent’s objections do not deny the allegations concerning the action by the district court.

Petitioners’ petition here shows no more than such denial by the district court of their petition there. It does not show what order, if any, was entered pursuant to the mandate. When entered it is a final judgment from which petitioners have the right to appeal if the mandate is not followed, or to seek our writ of mandamus in aid of our appellate jurisdiction, exercised in our decision and mandate to the court. Cf. Baltimore & O. R. Co. v. United States, 279 U.S. 781, 785, 49 S.Ct. 492, 73 L.Ed. 954.

So far as concerns mandamus, the appeal was decided, and the mandate was issued November 17, 1941. Assuming, but not deciding, that, after the expiration of the 1941 term, in aid of our appellate jurisdiction exercised in the decision and mandate, we have the power to issue the writ of mandamus to require obedience of the mandate, we decline to consider its issuance, believing the expression of our views sufficient for the guidance of the district court. Cf. Mulhens & Kropff, Inc., v. Ferd Muelhens, Inc., 2 Cir., 48 F.2d 206, 207.

The petition is denied.

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136 F.2d 489, 1943 U.S. App. LEXIS 3078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/favour-v-hill-ca9-1943.

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