Morrison Waite

“ Cook (99 U.S. 607) , we held that to justify a motion to affirm under this rule there must be a motion to dismiss and at least some color of right to a dismissal.
In Stewart v. Salamon (97 U.S. 361) , we decided that if an appeal was taken from a decree entered on our mandate upon a previous appeal, we would, on the application of the appellee, examine the decree entered, and if it conformed to the mandate, dismiss the case, with costs. The motion to dismiss in this case was apparently based upon that ruling. It seemed to us, when it was up for hearing, to have been made in good faith ”

“ If the State court has funds in its hands out of which its judgment can be paid, it has full power to order the payment, but the liability of the fund in the Circuit Court to the receiver has already been fully discharged. ”

“ Second appeals have always been allowed to bring up proceedings subsequent to the mandate and not settled by the terms of the mandate itself. Supervisors v. Kennicott, 94 id. 498; Tyler v. Magwire, 17 Wall. 53 . This case comes clearly within that rule, and the motion to dismiss is, therefore, denied.
But we think the motion to affirm should be granted. The question of compensation to the receiver, so far as the fund in the Circuit Court is concerned, was settled on the former appeal. ”