# Hemmenway v. Fisher

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United States Supreme Court
61 U.S. 255
Hemmenway v. Fisher
THIS was an appeal from the Circuit Court of the United States for the district of Massachusetts, sitting in admiralty.
It was argued at the preceding term of this court by Mr. Loring for the appellant, and Mr. Bartlett and Mr. Thaxter for the appellee. The judgment of the Circuit Court was affirmed by a divided court, and a mandate was issued for the amount named in such judgment, but no interest was mentioned, as none was given in the judgment of the Circuit Court. The mandate was not filed in the Circuit Court, and at the present term Mr. Bartlett made the following motion, which was argued by Mr. Gillett:
And now the appellee moves to amend the judgment rendered in this cause at the December term of this court, in the year of our Lord 1856, by giving to the appellants damages on the decree of the Circuit Court, at the rate of six per centum per annum, and that the judgment be so reformed, and for cause shows—
1st. That the mandate in said cause, though issued, has never been presented to the Circuit Court, and is now returned herewith, and filed with the clerk.
2d. That, upon inquiry of several of the judges, it has been ascertained that the question of damages was not passed upon by the court, and so this motion is not precluded by the past action of this court.
3d. That by the rules of this court, (Nos. 17 and 18,) 'Where there are no special circumstances, six per cent. interest is allowed on the judgment of the court below,' and the omission to insert the same in the record and mandate is deemed by this court a mere clerical error, capable of amendment at a succeeding term of this court, if the mandate has not been presented to the Circuit Court, and shall be restored to the files of this court. (Bank of Kentucky v. Withers, 3 Peters, 431.)
4th. The fact that the judgment in this case was affirmed upon a division of opinion among the members of the court cannot make it a case of 'special circumstances' within the case above cited, since it is hardly to be presumed that in all cases where there are difficulties in a cause, the party ultimately prevailing is to lose his damages.
Any rule that should make damages in such case on a division of opinion upon the main question among the members of the court, would be open to the suggestion that in principle it ought not to make them depend upon an exact equal division, but apportion them according to the number of dissenting opinions among the members of the court.
S. BARTLETT, for the Appellee.
The appellant objects to the amendment proposed in the judgment rendered in the above entitled cause, and to the allowance of the interest claimed.
1st. Because no interest or damages were claimed at the hearing in this cause; the proper time to have presented this claim was at the hearing; and it is too late, after a decree has been rendered and a mandate issued, to seek at a subsequent term to raise that question. In the case of the Santa Maria, 10 Wheat., 431, 436, the court say, 'In this view, it (the claim of interest) was matter open for discussion upon the original appeal; and no interest having been asked or granted, the claim is finally at rest. What was formerly before the court cannot again be drawn into controversy.' A decree in which no damages are allowed is conclusive and final.
In the case Boyce's Ex'r v. Grundy, reported 9 Peters, 275, the court say, 'It is solely for the decision of the Supreme Court, whether any damages or interest (as a part thereof) are to be allowed in cases of affirmance, (p. 290.) If, upon affirmance, no allowance of interest or damages is made, it is equivalent to a denial of any interest or damages, (p. 290.)In the present case, the motion assumes and admits that no such allowance was made by the court; this decree, therefore, is equivalent to a denial of damages.
The case referred to in 3d of Peters would seem to have been an error of the clerk in not entering the judgment, with the damages which the court decreed, or intended to decree.
This is a different case; no damages were claimed by the appellant, and none were decreed, or intended to be decreed, by the court. Here was no clerical error, but an omission or waiver of a claim to damages by the appellee; and consequently the court did not decree any.
2d. The appellee cannot rest any claim on the fact that the mandate has not been delivered to the Circuit Court; that is his own wrong.
It was his duty to have delivered it immediately upon its being issued.
And had it been so delivered, the appellant would have paid the amount of the judgment; and has in fact held the money unused from that time to the present, for the purpose, and will do so until the final decree in the Circuit Court.
If therefore the decree is to be changed, and any interest allowed, the appellant claims that he ought not to be charged with interest after the mandate was issued, none having been claimed by the appellee; and the mandate having been retained nearly twelve months in his hands, to the detriment of the appellant.
WILLIAM DEHON, for Appellant. Appellee's Reply.
1st. The ground that appellee must be deemed to have waived the application of a standing rule of this court to his case, because he did not specially ask at hearing that it be applied, cannot, it is submitted, be maintained.
2d. The case of the Santa Maria, 10th Wheaton, cited by appellant, has, it is submitted, no application, since it was an attempt to alter the terms of a stipulation made in the admiralty by a claimant, and insert an engagement to pay interest on the sum stipulated. Nor does the case of Boyce v. Grundy, 9 Peters, affect this application, since that case proceeds on the ground that the court passed on the question of allowing damages, and purposely entered the decree without making the allowance. This application proceeds on the ground (supposed to be ascertained) that the court did not pass on the question at all, and that under the general rule damages are to be allowed unless purposely denied; and this is the point determined by 3d Peters, 431.
3d. The suggestion, that at all events interest ought to be denied after the mandate issued, ought not to prevail, if there was what the court deem a clerical error, since appellee had no remedy in the vacation of this court, and appellant has in the mean time enjoyed the use of the money.
S. BARTLETT, for Appellee.
Mr. Chief Justice TANEY delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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