66

paid within sixty days by the purchasers of said railroad sold at foreclosure sale in No. 3578. Complainant further says that it was impossible for it to file a bill of review to correct said decrees (of December 22, 1883) at any time between March 15, 1884, and June 11, 1887, because said decrees, by said order of April 10, 1884, had been set aside and annulled, and complainant so regarded them during said period, and moreover it believed, and had the right to believe, that said Grant Locomotive Works and the American Loan and Trust Company and R. S. Grant had abandoned all claim of right under the orders of December 22, 1883; and therefore complainant says that said period of time should not have been counted against it in filing its bill of review; that the said orders of December 22, 1883, are erroneous and ought to be reviewed, reversed and set aside for the many errors and imperfections common thereto, as shown by the record of the said case 3578, that is to say ;" and then follow a number of grounds assigned for the review desired, and special grounds as to each of the orders. Complainant "files herewith a copy of the record in said cases 3554 and 3578, and craves leave to refer to same as part hereof," and prays that the orders be reviewed, reversed and set aside, and that the American Loan and Trust Company and said Grant Locomotive Works may be required to answer the premises, and for general relief. [221] This bill of review was subscribed and sworn to January 10, A. D. 1889. Process was issued and served on the solicitor of record for the American Loan and Trust Company and the Grant Locomotive Works.

On the 29th day of January, 1889, there came on to be heard the motion of the said Loan and Trust Company and the Grant Locomotive Works, to strike the bill of review from the files, which was argued by counsel and sustained by the court. From this order the Central Trust Company prayed an appeal to this court, which was granted, and bond given and approved on the 31st day of January, A. D. 1889. The record was filled in this court October 2, 1889, and the cause docketed as number 1281.

On the same 28th day of January the Central Trust Company filed a similar bill of review against R. S. Grant, setting up the prior bill of foreclosure in case No. 3554 and the subsequent proceedings thereon, and on the intervening petition of R. S. Grant, as in the other case, and praying similar relief on the same grounds in respect to the orders of December 22, 1883. This bill of review was likewise stricken from the files on the 29th day of January, 1889, and an appeal prayed to this court, the record being filed herein October 2, 1889, and the cause numbered 1282.

Messrs. B. H. Bristow, Bluford Wilson and W. S. Opdyke, for appellees, in support of motions to dismiss and affirm:

The Trust Company cannot be affected by the decrees of January 28, 1889.

Farmers Loan & Trust Co. v. Waterman, 106 U. S. 265 (27: 115).

There is sufficient color of right to a dis

missal to justify the court in considering the motion to affirm.

Whitney v. Cook, 99 U. S. 607 (25: 446); Hinckley v. Morton, 103 U. S. 764 (26: 458) Micas v. Williams, 104 U. S. 556 (26: 842) The S. C. Tryon, 105 U. S. 267 (26: 1026); Swoope v. Leffingwell, 105 U. S. 3(26: 939); Ackley School Dist. v. Hall, 106 U. S. 428 (27: 237); Evans v. Brown, 109 U. S. 180 (27: 898); Davies v. Corbin, 113 U.S. 687 (28: 1149); Eureka Lake & Yuba Canal Co. v. Yuba Coun ty Super. Ct. 116 U. S. 410 (29: 671); Walston v. Nevin, 128 U. S. 578 (32: 544); The Alaska, 130 U. S. 201 (32: 923); Chanute v. Trader, 132 U. S. 210 (33: 345).

The decrees of December 22, 1883, were final decrees.

Fosdick v. Schall, 99 U. S. 235 (25: 339); Fosdick v. Car Co. 99 U. S. 256 (25: 344); Trustees v. Greenough, 105 U. S. 527 (26: 1157); Savannah v. Jesup, 106 U. S. 563 (27: 276); Miltenberger v. Logansport R. Co. 106 U. S. 286 (27: 117); Williams v. Morgan, 111 U. S. 684 (28: 559).

Being final decrees, the circuit court had no power to vacate or modify the same after the close of the October Term.

Barrell v. Tilton, 119 U. S. 637 (30: 511); Bronson v. Schulten, 104 U. S. 410 (26: 797); McMicken v. Perin, 59 U. S. 18 How. 507 (15: 504); Cameron v. McRoberts, 16 U. S. 3 Wheat. 591 (4: 467).

There was no way in which these decrees could be modified, except by an appeal therefrom taken within two years, or by the filing, within two years, of a bill of review.

Muller v. Ehlers, 91 U. S. 249 (23: 319); Buffington v. Harvey, 95 U. S. 99 (24: 381); Ensminger v. Powers, 108 U. S. 292, 302 (27: 732, 736), and cases cited; Mitford & Tyler, Eq. Pr. 487.

The appellant's bills in Nos. 1281 and 1282 being based upon error upon the record merely, the circuit court had no jurisdiction to entertain the same after two years had passed since the entry thereof.

Clark v. Killian, 103 U. S. 766 (26: 607); Kennedy v. Georgia State Bank, 49 U. S. 8 How. 586 (12: 1209); Whiting v. Bank of U. S. 38 U. S. 13 Pet. 6 (10: 33); Thomas v. Harvie's Heirs, 23 U. S. 10 Wheat. 146 (6: 287).

Messrs. Edward Colston and George Hoadley, Jr., for appellants, in opposition: The receiver does not represent the complainant in the cases below in any claims upon the property.

Union Trust Co. v. Illinois Midland R. Co. 117 U. S. 469 (29: 975).

These orders are not decrees.

Washington R. Co. v. Bradleys, 77 U. S. 10 Wall. 299 (19: 894); Forgay v. Conrad, 47 U. S. 6 How. 204 (12: 405); Pulliam v. Christian, 47 U. S. 6 How. 209 (12: 408); Craighead v. Wilson, 59 U. S. 18 How. 200 (15: 333); Beebe v. Russell, 60 U. S. 19 How. 284 (15: 668); Thompson v. Dean, 74 U. S. 7 Wall. 345 (19: 95); North Carolina R. Co. v. Swasey, 90 U. S. 23 Wall. 405 (23: 136); Crosby v. Buchanan, 90 U. S. 23 Wall. 453 (23: 142); Grant v. Phoenix Ins. Co. 106 U. S. 431 (27: 238); Burlington, C. R. & N. R. Co. v. Simmons, 123 U. S. 52 (31: 73); Por

ter v. Pittsburg Bessemer Steel Co. 120 U. S. 649 (30: 830); Green v. Fisk, 103 U. S. 518 (26: 486); Brown v. Swann, 34 U. S. 9 Pet. 1 (9: 29).

The court can review its own orders given to the receiver.

Union Trust Co. v. Illinois Midland R. Co. 117 U. S. 434 (29: 963).

The doctrine of relation cannot be invoked in order to cut off these bills of review. Lynch v. Bernal, 76 U. S. 9 Wall. 315 (19: 714); Gibson v. Chouteau, 80 U. S. 13 Wall. 92 (20:534).

There is no difference between an appeal taken in open court and one taken out of court before a judge, except that in the latter case a citation is necessary.

Hudgins v. Kemp, 59 U. S. 18 How. 537 (15: 513).

When an appeal is allowed and security taken, the appeal is transferred to this court. Draper v. Davis, 102 U. S. 370 (26: 121); Keyser v. Farr, 105 U. S. 265 (26: 1025); Goddard v. Ordway, 101 U. S. 745 (25: 1040); Ensminger v. Powers, 108 U. S. 302 (27: 736).

Mr. Chief Justice Fuller delivered the opinion of the court:

The appeals in 1277, 1278, 1279 and 1280 were taken from the orders of January 28, 1889, requiring payment for the use of the Grant Locomotive Works, and R. S. Grant, of the amounts decreed December 22, 1883 (less what had been received in the intermediate period), and in execution of said decrees, from the purchasers of the southeastern division, and from the purchasers of the Cincinnati northern division, of the Toledo, Cincinnati and St. Louis Railroad Company. These purchasers bought subject to the provisions of the decrees, the terms of sale, and the orders confirming the sales, which were the source of their title, and which provided for the payment down of a specified sum in cash, and of such further portions of their bid in cash as might be necessary in order to meet such other claims as the court might adjudge to be prior in equity to the mortgages, with the reservation of a right of resale in case of default in this particular: and the right, title and interest they acquired was expressly made subject to these provisions. Costs, fees and expenses of sale, receiver's expenses and indebtedness, and claims awarded priority, were to be first paid. The balance of their bid they could pay in cash or in first-mortgage bonds. That bid, in the instance of the southeastern division, was $500,000, and the purchasers were not required by the orders in question to pay any amount in excess thereof. Neither the purchasers of the Cincinnati northern division, nor their assignee, the Cincinnati, Lebanon and Northern Railway Company, took any appeal.

It does not appear to us that the Dayton, Fort Wayne and Chicago Railroad Company, the assignce of the purchasers of the southeastern division, has an appealable interest in the premises.

The purchasers were bound to pay such portions of their bid in cash as the court might direct, to meet other claims, and

whether the payments of their bids were to be made for the benefit of the bondholders, or partly for the bondholders and partly for the benefit of the appellees, it is clear that they, as purchasers, and the railroad company as their assignee, had no interest in the matters affected by the decrees appealed from.

In Swann v. Wright's Executor, 110 U. S. 590, 601 [28: 252, 256], Swann had purchased the railroad under a decree, which provided that the sale should be subject to the liens already established, or which might be established on references then pending, as prior and superior to the lien of the mortgage, and the claim of Wright was one of this class. It was pending before the master and reported on after the sale, when the purchaser applied to oppose its confirmation, and was not allowed to do so; and the sale was afterwards confirmed, expressly subject to all liens established as specified in the [223] decree of sale. Swann afterwards filed a bill to set aside Wright's claim for fraud in its inception, which was dismissed, and the dismissal affirmed on the ground that the property was purchased expressly subject to all established claims, or claims that might be established on references then pending, which included Wright's. "If the court," observed Mr. Justice Harlan, delivering the opinion, "had in the decree of sale reserved to the purchaser, although not a party to the proceedings, the right to appear and contest any alleged liens then under examination, and therefore not established by the court, an entirely different question would have been presented. But no such reservation was made; and the purchaser was required, without qualification, to take the property, upon confirmation of the sale, subject to the liens already established, or which might, on pending references, be established as prior and superior to the liens of the first-mortgage bondholders. All that we decide is that, in view of the express terms of the decree of sale, and since neither the purchaser nor his grantee proposes to surrender the property to be resold for the benefit of those concerned, such purchaser has no standing in court for the purpose of re-litigating the liens expressly subject to which he bought and took title."

In Stuart v. Gay, 127 U. S. 518 [32: 191], under a decree for the foreclosure of certain liens, which contemplated the payment of the purchase money on the sale, in money, in annual installments, Stuart purchased, and by a subsequent order was allowed to be credited on unpaid purchase money with various liens he had acquired. From a later order in respect to allowances of interest upon certain prior liens he appealed to this court, and it was held that he had no appealable interest, as a purchaser of the property, because it was a matter of indifference to him as such how the proceeds of the sale should be distributed among the creditors.

It is argued, however, that the purchase of the southeastern division was not made subject to the decrees of December 22, 1883, because it is said that at the time of the purchase "these decrees were dead and thought to be beyond resurrection;" and “that a pur

[224

3.

But when such officers refuse to act at all, where the law requires them to act, or when they refuse to perform a mere ministerial duty, a mandamus lies to compel them to act or to perform such ministerial duty.

When a subordinate officer is overruled by his superior having appellate jurisdiction over him, his duty to obey the decision of such superior is a ministerial duty, which he can be compelled by mandamus to perform.

[No. 1572.]

The bills are not based upon new matter or newly discovered evidence, and no leave bills for the review of the orders of December 22, 1883, for errors apparent of record. Such bills must ordinarily be brought within the time limited by statute for taking an appeal from the decree sought to be reviewed. Thomas v. Harrie's Heirs, 23 U. S. 10 Wheat. 146 [6: 287]; Ensminger v. Powers, 108 U. S. 292, 302 [27: 732, 736]. Over five years had elapsed, but it is insisted that the time between the 10th of April, 1884, and the 11th of June, 1887, when the orders of April 10th, 1884, were declared void, ought not to be considered in passing upon this question, because of appellant's belief in the validity of and reliance upon those orders and the acquiescence of appellees

therein.

It seems to us that appellant was not justified in such belief and reliance, and that, at all events, after the orders of June 11, 1887, it should have moved promptly by way of appeal or bill of review. These bills attack the orders of December 22, 1883, merely, and not the decrees of June 11, 1887, reinstating the former as in full force and effect. The rule laid down in Thomas v. Harvie's Heirs is based upon the principle of discountenancing laches and neglect. Under all the circumstances we cannot concede that appellant acted in apt time, and must therefore affirm the orders of the Circuit Court striking the bills from the files.

The appeals in Nos. 1278 and 1280 are dismissed and the decrees in Nos. 1277, 1279, 1281 and 1282 are affirmed.

Mr. J. G. Bigelow for plaintiff in error. Mr. Wm. A. Maury, Assistant Atty-Gen., for defendant in error.

Mr. Justice Bradley delivered the opinion [201] of the court:

The relator, Charles R. Miller, applied for a peremptory mandamus against the respondent, Green B. Raum, Commissioner of Pensions, to command him to reissue the relator's pension certificate, with the rates of $25 per month from June 6, 1866; $31.25 per month from June 4, 1872; $50 per month from June 4, 1874; and $72 per month from June 17, 1878; and to allow him the monthly difference between these sums and what had been allowed him. From the statements of the petition it appears that the sums here. tofore allowed to the relator by way of pension have been $8 per month from the date of his discharge from military service, August 27, 1865; $15 per month from June 6, 1866; $18 per month from June 4, 1872; $24 per month from November 23, 1881; $30 per month from March 3, 1883; and $50 per month from January 14, 1885.

The injuries of which the relator complains are anchylosis, or rigidity, of the spinal column, and of the left leg, resulting from wounds received in the service, and making him nearly helpless, so as to require, as he alleges, the regular personal aid and attendance of another person.

After repeated applications for an increase

LER, Plff. in Err.,

v.

getting only $30 per month from March 3, 1883, under the Act of that date, he finally

sions.

(See 8. C. Reporter's ed. 200-207.)

to the Secretary of the Interior, who rendered a decision on the 6th of February, 1885, directed to the Commissioner, and declaring, amongst other things, that "the pensioner is

1. The courts will not interfere with the executive officers of the government in the exercise of

their ordinary official duties.

NOTE.-When mandamus will issue. See note to McCluny v. Silliman, 4: 263.

As to mandamus to control inferior courts; discretion, see note to Ex parte Morgan, 29: 135.

As to mandamus to compel city, town or county to levy tax to pay bonds or interest on bonds, see note to Davenport v. U. 8. 19: 704.

papers in his case that he is utterly unable titled to $30 per month under the Act of to do any manual labor, and is therefore enMarch 3, 1883, which has been allowed him by your office." On a reconsideration of the case, a further decision was made on the 12th of February, 1885, in which the Secretary said:

"Since the departmental decision above referred to the papers in the claim have been carefully reconsidered by the Department and