Graff v. Barnum

Bartol, C. J., delivered the opinion of the Court. By the decree of this Court on the former appeal in this cause, passed on the 8th day of December, 1869, the decree of the Circuit Court of the 14th of June, 1869, was reversed, and the cause was remanded, 11 in order that a new decree might be passed, modifying the decree then appealed from, as and in the manner directed, in the opinion of this Court filed with and accompanying the decree of the 8th of December, and that further proceedings might be had under such new decree, in accordance therewith and according to the usual practice and course of the Court.” After the cause had thus been remanded, it became necessary in consequence of the death of John R. Barnum, one of the defendants, to revive the suit against his representatives; and proceedings were had whereby his executor, and his widow and children, the devisees named in his will, were made parties defendants. Ho other proceedings were had, except that a petition was filed in the Circuit Court by the present appellants, which was dismissed; that petition will be noticed hereafter. The Circuit Court in obedience to the mandate of the Court of Appeals, proceeded to pass the decree from which this ap ²⁸⁶ peal has been taken.

The case before the Circuit Court, when this decree was passed, was in all respects the same case that was before this Court on the former appeal, when the cause was remanded for the purpose of having a decree passed therein according to the decision and direction of this Court. By an inspection of this decree, and a comparison of it with the opinion and decree of this Court of the 8th of December, it appears that the Circuit Court has conformed in all respects to the order and direction of this Court, the decree therefore has the force and effect of a judgment of the Court of Appeals, and an appeal therefrom cannot be entertained. To allow an appeal in such case would be to allow a party to baffle and defeat the whole object and effect of the decree of this Court. The motion to dismiss this appeal must therefore be sustained.

These appellants are the widow and executor of the late John R. Barnum, who was a defendant in the cause claiming to be entitled to a share of the property mentioned in the proceedings, and of the rents and profits, as a son of Richard Barnum, and a grandson of David Barnum, the original testator. In the original bill filed in the cause, this claim of John R. Barnum was averred; but his right thereto was called in question on the alleged ground that he was illegitimate. By the decree of the 14th of June, 1869, which came up on the former appeal, the rights of John R. Barnum and his claim to a share of the rents and profits and of