Ellis v. Reed , 258 F. 919 ( 1919 )

HUNT, Circuit Judge

(after stating the facts as above).

The order of reversal in Ellis v. Reed, 238 F. 341, 151 C.C.A. 357, was based upon error by the District Court in ruling that the transcript of judgment in Reed v. Thompson, affirmed in 202 F. 870, 121 C.C.A. 228, was proof that the conveyance therein considered from Thompson to Cummings was fraudulent and binding upon the appellant in Ellis v. Reed, supra. Our expressed view was that the question whether the conveyance was fraudulent as to the creditors in Ellis v. Reed, supra, was not disposed of by prior adjudication to which certain creditors were not parties or privies; hence reversal followed. It would have been proper to have made the order a reversal with a remand to the lower court, with directions to afford appellant opportunity to offer competent evidence, if he could, to sustain the material allegations which the District Court, by erroneous ruling, had held were sustained. But as we acted upon the hypothesis that the term of the District Court at which the decree was made was not ended, and that appellee could move for a rehearing as indicated in Roemer v. Simon, 91 U.S. 149, 23 L.Ed. 267, we added the purpose of the remand and the practice to be pursued. It is fair to say that, had the record then before us showed on its face that the term of court at which the final decree of the District Court was rendered had ended, and that therefore there could be no motion for rehearing in the District Court, our order would not have contained such limited reference to a procedure, for we clearly intended that the reversal and the remand should be without prejudice to the appellee to make proof, if he could, by competent evidence.

We are satisfied, however, that motion for rehearing was not available. On the other hand, the order of the District Court for rehearing was evidently made with a view of complying with our mandate. This being so, why may not such order be regarded as, in effect, one merely for further examination by the District Court into the point upon which reversal was ordered? By regarding it in such light, the order may be safely treated not as granting a new hearing upon the pleadings and evidence already in the case, but rather as for a further examination of a point upon which the District Court, by advice of this court, could receive new or additional evidence. When regarded and limited in this way, the order may be one carrying out the substance of the decision of this court in the main case, and made without apparent violation of the order of this court.

In equity cases the practice of remanding for further examination is proper, and we are of opinion that it may be pursued in the present instance. Peoria Gas & Elec. Co. v. Peoria, 200 U.S. 48, 26 S.Ct. 214, 50 L.Ed. 365; Westinghouse Co. v. Wagner Elec. & M. Co., 225 U.S. 604, 32 S.Ct. 691, 56 L.Ed. 1222, 41 L.R.A.(N.S) 653; Barber v. Coit, 118 F. 272, 55 C.C.A. 145. Giving to the order the limited effect indicated, we do not think prohibition should issue.

The writ is therefore denied, and the petition is dismissed, at petitioner’s costs.