B-163682, MAY 24, 1968

B-163682, MAY 24, 1968

TO MR. E.D. CRUMPACKER:

SUBJECT:

BETTY K. FURUMIXO, ET AL. V UNITED STATES, ET AL.

U.S.D.C., DISTRICT OF HAWAII, CIVIL ACTION NO. 2091

YOUR LETTER OF MARCH 21, 1968, REFERS TO OUR DECISION OF MARCH 18, 1968, B-163682, TO YOU, DENYING THE CLAIM FOR INTEREST AGAINST THE GOVERNMENT ON THE JUDGMENT IN THE ABOVE-ENTITLED CASE.

IN OUR DECISION OF MARCH 18 WE CONSIDERED THE JUDGMENT (I.E., EACH AWARD UNDER THE JUDGMENT) AGAINST THE UNITED STATES NOT TO BE IN EXCESS OF $100,000, AND, THUS, THAT THE PAYMENT OF INTEREST THEREON BY THE UNITED STATES WAS SUBJECT TO THE PROVISIONS OF 31 U.S.C. 724A. IN OUR DECISION WE STATED THAT:

"* * * SINCE TORT ACTIONS AGAINST THE UNITED STATES ARE INSTITUTED UNDER SAID SECTION 1346, IT FOLLOWS THAT INTEREST ON THE JUDGMENT HERE INVOLVED IS AUTHORIZED BY SECTION 2411 (B). HOWEVER, THE INTEREST AUTHORIZED TO BE PAID ON DISTRICT COURT JUDGMENTS BY 28 U.S.C. 2411 (B) IS LIMITED BY THE FIRST PROVISO OF SECTION 1302 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1957, QUOTED ABOVE (31 U.S.C. 724A). THAT PROVISO IN CLEAR AND UNEQUIVOCAL LANGUAGE LIMITS SUCH INTEREST TO THOSE JUDGMENTS (NOT IN EXCESS OF $100,000) WHICH BECOME FINAL AFTER REVIEW ON APPEAL OR PETITION BY THE UNITED STATES, AND FURTHER LIMITS THE PERIOD FOR WHICH SUCH INTEREST MAY BE PAID TO THE PERIOD FROM THE DATE OF THE FILING OF THE TRANSCRIPT OF THE JUDGMENT IN THE GENERAL ACCOUNTING OFFICE TO THE DATE OF THE MANDATE OF AFFIRMANCE.

"IN THE PRESENT CASE THE ORIGINAL JUDGMENT WAS RENDERED BY THE DISTRICT COURT ON JUNE 22, 1965, AND A TRANSCRIPT THEREOF WAS NEVER FILED IN THE GENERAL ACCOUNTING OFFICE. THE AMENDED JUDGMENT, ALTHOUGH ENTERED NUNC PRO TUNC AS OF JUNE 22, 1965, IS DATED DECEMBER 29, 1967, AND A COPY THEREOF WAS FIRST FILED IN THIS OFFICE ON JANUARY 26, 1968. THE COURT OF APPEALS AFFIRMANCE OF THE ORIGINAL JUDGMENT WAS HANDED DOWN ON AUGUST 9, 1967, AND IT DENIED A REHEARING ON SEPTEMBER 19, 1967. WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF JUSTICE THAT ON OCTOBER 9, 1967, A CERTIFIED COPY OF THE JUDGMENT OF THE COURT OF APPEALS WAS ISSUED TO THE DISTRICT COURT IN LIEU OF A MANDATE OF AFFIRMANCE, AS PROVIDED FOR UNDER RULE 26 OF THE NINTH CIRCUIT RULES. SINCE THE DATE (OCTOBER 9, 1967) OF THE DOCUMENT ISSUED IN LIEU OF THE MANDATE OF AFFIRMANCE PRECEDED THE DATE OF THE FILING OF THE JUDGMENT (ORIGINAL AND AMENDED) IN THE GENERAL ACCOUNTING OFFICE, THE PAYMENT OF ANY INTEREST ON THE JUDGMENT IS PROHIBITED BY THE LIMITATION CONTAINED IN THE FIRST PROVISO OF SECTION 1302.'

IT IS YOUR VIEW THAT THE JUDGMENT (AND THE AMENDED JUDGMENT) AGAINST THE UNITED STATES IS IN EXCESS OF $100,000, AND, HENCE, IS NOT SUBJECT TO THE PROVISIONS OF 31 U.S.C. 724A. YOU REQUEST THAT WE NOTE THAT BOTH THE JUDGMENT AND THE AMENDED JUDGMENT AWARDED TO THE SINGLE PLAINTIFF BETTY K. FURUMIZO (IN THREE CAPACITIES), A TOTAL OF $221,580.39 PLUS COSTS IN THE AMOUNT OF $889.83 AGAINST THE UNITED STATES OF AMERICA AND BAKER AIRCRAFT SALES, INC., (BAKER) AND THAT OUT OF THAT TOTAL, THE SUM OF $176,216.46 WAS AWARDED TO THE PLAINTIFF IN HER INDIVIDUAL CAPACITY.

YOU STATE THAT THIS WAS A JOINT AND SEVERAL JUDGMENT FOR WHICH THE UNITED STATES WAS LEGALLY LIABLE IN FULL. YOU FURTHER STATE THAT THE INTEREST PROVISION WAS INSERTED INTO THE AMENDED JUDGMENT MERELY FOR THE PURPOSE OF CARRYING OUT THE INTENT OF THE COURT THAT BOTH DEFENDANTS SHARE EQUALLY IN THE PAYMENT OF THE JUDGMENT, EVEN THOUGH THE UNITED STATES MAY HAVE APPEARED TO HAVE A PREFERRED POSITION AS A RESULT OF THE PROVISIONS OF 28 U.S.C. 2411 (B) WHICH LIMITS INTEREST AGAINS THE UNITED STATES TO 4 PERCENT RATHER THAN 6 PERCENT ALLOWABLE AGAINST INDIVIDUAL DEFENDANTS, AS WELL AS 31 U.S.C. 724A WHICH -- YOU INDICATE -- APPEARS TO BE INCONSISTENT THEREWITH.

THUS, YOU STATE THAT THE MAXIMUM EXPOSURE OF THE UNITED STATES UNDER THE JUDGMENT WAS THE FULL AMOUNT THEREOF $222,470.22, PLUS INTEREST AT THE RATE OF 4 PERCENT PER ANNUM FROM THE DATE OF THE JUDGMENT. IT IS YOUR VIEW THAT AT THE VERY LEAST THIS WOULD BE APPLICABLE TO THE PORTION OF THE JUDGMENT IN THE AMOUNT OF $176,216.46 AWARDED TO THE PLAINTIFF IN HER INDIVIDUAL CAPACITY. YOU ADVISE THAT UNDER THE UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT (OF HAWAII):

"-THE RECOVERY OF A JUDGMENT BY THE INJURED PERSON AGAINST ONE JOINT TORTFEASOR DOES NOT DISCHARGE THE OTHER TORTFEASOR- REVISED LAWS OF HAWAII 1955, SECS. 246-12.'

HENCE, IT IS YOUR VIEW THAT IF IT BECOMES NECESSARY FOR THE PLAINTIFF TO COLLECT THE BALANCE OF THE INTEREST FROM THE DEFENDANT BAKER AIRCRAFT SALES, INC., THEN THAT DEFENDANT WOULD BE ENTITLED TO COLLECT SUCH SUM FROM THE UNITED STATES PURSUANT TO THE SECOND PARAGRAPH OF THE AMENDED JUDGMENT (THE JUDGMENT AGINST THE UNITED STATES ON BAKER'S CROSS-CLAIM), SINCE IT WOULD HAVE "PAID MORE THAN (ITS) PRO RATA SHARE THEREOF," AND YOU QUOTE FROM THE REVISED LAWS OF HAWAII 1955, SECS. 246-16, UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT.

YOU STATE THAT EVEN IF THE GOVERNMENT IGNORES THE FOREGOING IT IS NEVERTHELESS CLEAR THAT ITS PORTION ALONE OF THE AMENDED JUDGMENT IS IN EXCESS OF $100,000 AND THEREFORE NOT SUBJECT TO THE PROVISIONS OF 31 U.S.C. 724A. YOU FURTHER STATE THAT IN A WRONGFUL DEATH ACTION UNDER THE FEDERAL TORT CLAIMS ACT WHEREIN JUDGMENT WAS RENDERED AWARDING CERTAIN SUMS TO THE WIDOW AND CHILDREN OF THE DECEASED AND EACH AWARD AMOUNTED TO LESS THAN $100,000 BUT THE AGGREGATE EXCEEDED THAT SUM, THE JUDGMENT WAS FOUND TO BE IN EXCESS OF $100,000, AND HENCE INTEREST WAS PAYABLE, AND CITE STATE OF MARYLAND TO USE OF MEYER V UNITED STATES, D.C.D.C. 1964, 229 F.SUPP. 280, AS AUTHORITY FOR SUCH STATEMENT.

YOU, IN EFFECT, EXPRESS THE VIEW THAT IF OUR OFFICE ERRONEOUSLY AUTHORIZED THE PAYMENT OF THE JUDGMENT OUT OF APPROPRIATIONS PROVIDED BY 31 U.S.C. 724 (A) RATHER THAN BY WAY OF A APPROPRIATION ACT CONTEMPLATED BY 28 U.S.C. 2411 (B), THIS CANNOT BE HELD TO HAVE PREJUDICED THE PLAINTIFF'S CLAIM AS HEREIN SET FORTH, SINCE SHE EXECUTED ONLY A PARTIAL SATISFACTION OF AMENDED JUDGMENT WITH THE EXPRESS UNDERSTANDING THAT THIS CLAIM WAS STILL OUTSTANDING.

YOU REQUEST, IN EFFECT, THAT WE TAKE PROMPT ACTION TO ASSURE THAT THE PLAINTIFF RECEIVES FROM THE UNITED STATES INTEREST ON THE JUDGMENT IN QUESTION.

IN ITS DECISION OR OPINION OF JUNE 21, 1965, AS CORRECTED SEPTEMBER 9, 1965, THE UNITED STATES DISTRICT COURT IN THE CASE OF FURUMIZO V UNITED STATES, 245 F.SUPP. 981, STATED THAT (PAGE 992):

"THE COURT HOLDS THAT THIS FAILURE TO EXERCISE ANY JUDGMENT UNDER THE CIRCUMSTANCES CONSTITUTED NEGLIGENCE ON THE PART OF THE TOWER CONTROLLERS AND WAS A CONTRIBUTING CAUSE OF THE ACCIDENT, ALONG WITH THE NEGLIGENCE OF THE DEFENDANT BAKER IN NOT FURNISHING IN SHIMA AN ADEQUATELY INFORMED AND TRAINED PILOT, AND FINDS THAT EACH IS EQUALLY LIABLE, AND THAT EACH SHOULD PAY ONE HALF OF THE JUDGMENT TO BE ENTERED PURSUANT TO THIS DECISION.'

THE COURT FURTHER STATED (PAGE 1012):

"IN ACCORDANCE WITH THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, THE COURT REAFFIRMS ITS PREVIOUS ORAL DECISION DURING THE TRIAL, FINDING THE DEFENDANTS BAKER AND THE GOVERNMENT EQUALLY NEGLIGENT AND LIABLE TO PLAINTIFFS IN EQUAL SHARES, AND DENIES ALL DEFENSES RAISED BY EITHER OF THE DEFENDANTS, BOTH AFFIRMATIVE AND OTHERWISE, AND NOW PROCEEDS TO ASSESS DAMAGES.'

ON JUNE 22, 1965, THE COURT ENTERED A JUDGMENT AGAINST BAKER AIRCRAFT SALES, INC., AND THE UNITED STATES IN FAVOR OF THE PLAINTIFFS AS FOLLOWS:

"/A) BETTY K. FURUMIZO, ADMINISTRATRIX OF THE ESTATE OF ROBERT TAKEO FURUMIZO, DECEASED, THE SUM OF $15,363.93.

"/B) CYNTHIA H. FURUMIZO, A MINOR, BY BETTY K. FURUMIZO, HER GUARDIAN AD LITEM, THE SUM OF $30,000.

"/C) BETTY K. FURUMIZO THE SUM OF $176,216.46.

"TOGETHER WITH INTEREST AS PROVIDED BY LAW, COSTS AGAINST THE DEFENDANT BAKER AIRCRAFT SALES, INC., AND COSTS AGAINST THE DEFENDANT UNITED STATES OF AMERICA ONLY TO THE EXTENT PERMITTED BY LAW.'

THE COURT'S ABOVE-QUOTED STATEMENTS MAKE IT CLEAR THAT THE UNITED STATES AND BAKER WERE TO PAY ONE-HALF OF THE JUDGMENT TO BE ENTERED PURSUANT TO THE COURT'S OPINION OR DECISION, TOGETHER WITH INTEREST, AS PROVIDED BY LAW. HENCE, THE ORIGINAL JUDGMENT ENTERED BY THE COURT WHEN READ IN CONJUNCTION WITH THE DECISION OF THE COURT, WAS NOT A JOINT AND SEVERAL JUDGMENT, BUT RATHER A JUDGMENT FOR WHICH THE UNITED STATES WAS LEGALLY LIABLE TO PAY ONLY ONE-HALF THEREOF, I.E., A TOTAL OF $110,790.19, TOGETHER WITH INTEREST AS PROVIDED BY LAW AND COSTS AS PERMITTED BY LAW. MOREOVER, SINCE PURSUANT TO THE ORIGINAL JUDGMENT AND DECISION OF THE COURT, EACH DEFENDANT WAS LIABLE FOR ONLY ONE-HALF OF THE TOTAL JUDGMENT, IT WAS NOT NECESSARY TO PROVIDE IN THE ORIGINAL JUDGMENT (AND THE ORIGINAL JUDGMENT DID NOT SO PROVIDE) THAT DEFENDANT BAKER WOULD BE ENTITLED TO COLLECT FROM THE UNITED STATES ANY AMOUNT IT PAID TO PLAINTIFF IN EXCESS OF THE ONE-HALF OF THE TOTAL JUDGMENT.

ON APPEAL THE ORIGINAL JUDGMENT WAS AFFIRMED WITHOUT CHANGE BY THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN A DECISION DATED AUGUST 9, 1967 (REHEARING DENIED SEPTEMBER 19, 1967), REPORTED AT 381 F.2D 965 (1967); AND ON OCTOBER 9, 1967, A CERTIFIED COPY OF THE JUDGMENT OF THE COURT OF APPEALS WAS ISSUED TO THE DISTRICT COURT IN LIEU OF A MANDATE OF AFFIRMANCE, AS PROVIDED FOR UNDER RULE 26 OF THE NINTH CIRCUIT RULES.

SUBSEQUENT TO THE DATE THE COURT OF APPEALS ISSUED ITS MANDATE OF AFFIRMANCE (I.E., THE DOCUMENTS IN LIEU THEREOF), THE DISTRICT COURT ISSUED THE AMENDED JUDGMENT. THE AMENDED JUDGMENT PROVIDES FOR "INTEREST AS PROVIDED BY LAW," AS WELL AS REQUIRING EACH DEFENDANT TO PAY "INTEREST AT THE RATE OF THREE PER CENTUM (3 PERCENT) PER ANNUM ON THE ENTIRE JUDGMENT OR ANY PART THEREOF NOT PAID BY SUCH PARTY UNTIL THE JUDGMENT IS FULLY SATISFIED," THE LATTER REQUIREMENT NOT BEING INCLUDED IN THE JUDGMENT WHICH WAS AFFIRMED BY THE COURT OF APPEALS. THE AMENDED JUDGMENT CONTAINS A FURTHER PROVISION ALSO NOT CONTAINED IN THE JUDGMENT AFFIRMED BY THE COURT OF APPEALS, WHICH READS AS FOLLOWS:

"IT IS FURTHER ORDERED AND ADJUDGED THAT DEFENDANT BAKER AIRCRAFT SALES, INC., IS AWARDED JUDGMENT UPON ITS CROSS-CLAIM AGAINST DEFENDANT UNITED STATES OF AMERICA FOR ANY PORTION OF THE PLAINTIFFS' RECOVERY HEREIN IN EXCESS OF ONE-HALF OF THE TOTAL THAT IS PAID BY DEFENDANT BAKER AIRCRAFT SALES, INC., TOGETHER WITH INTEREST AS PROVIDED BY LAW FROM THE DATE OF SUCH PAYMENT.'

HOWEVER, NOTWITHSTANDING THE LAST-QUOTED LANGUAGE, AS INDICATED ABOVE, THE DECISION OF THE DISTRICT COURT SPECIFICALLY PROVIDES THAT EACH DEFENDANT "IS EQUALLY LIABLE, AND THAT EACH SHOULD PAY ONE-HALF OF THE JUDGMENT TO BE ENTERED PURSUANT TO THIS DECISION" . IT APPEARS THAT BOTH THE ORIGINAL JUDGMENT AND THE AMENDED JUDGMENT WERE ENTERED PURSUANT TO THE SAME DECISION OF THE COURT, I.E., THE DECISION REPORTED AT 245 F.SUPP. 981. THUS, IT APPEARS THAT THE LIABILITY OF THE UNITED STATES AND BAKER TO THE PLAINTIFFS IS LIMITED TO ONE-HALF OF THE TOTAL JUDGMENT, PLUS OTHERWISE APPROPRIATE INTEREST AND COSTS, AND THAT NEITHER DEFENDANT MAY BE REQUIRED TO PAY MORE THAN THAT AMOUNT.

AS TO WHETHER THE GOVERNMENT'S PORTION ALONE OF THE AMENDED JUDGMENT IS IN EXCESS OF $100,000, AND THEREFORE NOT SUBJECT TO 31 U.S.C. 724A, AS INDICATED IN YOUR LETTER, IN STATE OF MARYLAND TO USE OF MEYER V UNITED STATES, 229 F.SUPP. 280, THE COURT HELD THAT IN A WRONGFUL DEATH ACTION UNDER THE FEDERAL TORT CLAIMS ACT WHEREIN JUDGMENT WAS RENDERED AWARDING CERTAIN SUMS TO THE WIDOW AND CHILDREN OF THE DECEASED AND EACH AWARD AMOUNTED TO LESS THAN $100,000, BUT THE AGGREGATE EXCEEDED $100,000, THE JUDGMENT WAS IN EXCESS OF $100,000, AND THEREFORE NOT SUBJECT TO THE PROVISIONS OF 31 U.S.C. 724A. HOWEVER, INSOFAR AS PERTINENT HERE, ON APPEAL THE UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT (349 F. 2D2.D 693) REVERSED THE DISTRICT COURT IN THE MEYER CASE AND HELD THAT EACH AWARD IN A PARTICULAR CASE MAY BE CONSIDERED A JUDGMENT "IN ANY ONE CASE" AS THAT EXPRESSION IS USED IN 31 US.C. 724A. THE COURT OF APPEALS STATED THAT:

"* * * THESE PURPOSES ARE SERVED BY PERMITTING EACH INDIVIDUAL WHO RECOVERS A SEVERABLE AND DISTINCT AMOUNT NOT IN EXCESS OF $100,000 TO BE PAID UNDER SECTION 724A. EACH SUCH CLAIMANT HAS A SEVERABLE AND SPECIFIC AWARD IN THE FINAL JUDGMENT. EACH AWARD MAY THEREFORE BE CONSIDERED A JUDGMENT -IN ANY ONE CASE- AS THAT EXPRESSION IS USED IN THE STATUTE. EACH INDIVIDUAL THUS AWARDED NO MORE THAN $100,000 COULD HAVE COMPLIED WITH THE STATUTE BY FILING A TRANSCRIPT OF THE JUDGMENT; EACH WOULD THEN HAVE BEEN ENTITLED TO RECEIVE PAYMENT WITH THE INTEREST AUTHORIZED BY SECTION 724A; AND EACH INDEED WOULD HAVE BEEN PAID. SEE HARUE HAYASHI, SUPRA AT 309.'

THUS, IT IS CLEAR THAT WHEN A JUDGMENT IS RENDERED AWARDING CERTAIN SUMS TO THE WIDOW AND CHILDREN OF THE DECEASED AND EACH AWARD AMOUNTS TO LESS THAN $100,000, BUT THE AGREGATE EXCEEDS THAT SUM, EACH AWARD IS A JUDGMENT "IN ANY ONE CASE" OF NOT IN EXCESS OF $100,000, AND INTEREST IS PAYABLE ONLY IN ACCORDANCE WITH 31 U.S.C. 724A. SINCE THE GOVERNMENT'S SHARE OF EACH AWARD UNDER THE AMENDED JUDGMENT IN THE INSTANT CASE AMOUNTS TO LESS THAN $100,000 (ALTHOUGH THE AGGREGATE OF THE GOVERNMENT'S SHARE OF THE AWARDS EXCEEDS THAT AMOUNT) INTEREST IS PAYABLE ON THE GOVERNMENT'S SHARE IN ACCORDANCE WITH 31 U.S.C. 724A. IN VIEW OF THE FOREGOING, OUR DECISION OF MARCH 18, 1968, B-163682 MUST BE, AND IS, SUSTAINED.

ALTHOUGH NOT NECESSARILY CONTROLLING IN THE INSTANT CASE, WE WOULD LIKE TO POINT OUT IN CONNECTION WITH THE AMENDED JUDGMENT, THAT IT HAS LONG BEEN HELD THAT A LOWER COURT HAS NO POWER OR AUTHORITY TO DEVIATE FROM THE MANDATE ISSUED BY AN APPELLATE COURT, BUT IS BOUND THEREBY AND CANNOT REOPEN QUESTIONS WHICH THE MANDATE LAYS TO REST. UNITED STATES V CATO BROTHERS, INC., 273 F.2D 153. THE UNITED STATES SUPREME COURT IN BRIGGS, ADMINISTRATRIX V PENNSYLVANIA RAILROAD CO., 334 U.S. 304, STATED THAT:

"IN ITS EARLIEST DAYS THIS COURT CONSISTENTLY HELD THAT AN INFERIOR COURT HAS NO POWER OR AUTHORITY TO DEVIATE FROM THE MANDATE ISSUED BY AN APPELLATE COURT. HIMELY V ROSE, 5 CRANCH 313; THE SANTAMARIA, 10 WHEAT. 431; BOYCE'S EXECUTORS V GRUNDY, 9 PET. 275; EX PARTE SIBBALD V UNITED STATES, 12 PET. 488. THE RULE OF THESE CASES HAS BEEN UNIFORMLY FOLLOWED IN LATER DAYS; SEE FOR EXAMPLE, IN RE WASHINGTON AND GEORGETOWN R. CO., 140 U.S. 91; EX PARTE UNION STEAMBOAT COMPANY, 178 U.S. 317; KANSAS CITY SOUTHERN R. CO. V GUARDIAN TRUST CO., 281 U.S. 1. CHIEF JUSTICE MARSHALL APPLIED THE RULE TO INTERDICT ALLOWANCE OF INTEREST NOT PROVIDED FOR IN THE MANDATE, HIMELY V ROSE, 5 CRANCH 313; MR. JUSTICE STORY EXPLAINED AND AFFIRMED THE DOCTRINE, THE SANTA MARIA, 10 WHEAT. 431; BOYCE'S EXECUTORS V GRUNDY, 9 PET. 275. WE DO NOT SEE HOW IT CAN BE QUESTIONED AT THIS TIME. IT IS CLEAR THAT THE INTEREST WAS IN EXCESS OF THE TERMS OF THE MANDATE AND HENCE WAS WRONGLY INCLUDED IN THE DISTRICT COURT'S JUDGMENT AND RIGHTLY STRICKEN OUT BY THE CIRCUIT COURT OF APPEALS. THE LATTER COURT'S MANDATE MADE NO PROVISION FOR SUCH INTEREST AND THE TRIAL COURT HAD NO POWER TO ENTER JUDGMENT FOR AN AMOUNT DIFFERENT THAN DIRECTED. ANY ENLARGEMENT OF THAT AMOUNT WERE POSSIBLE, IT COULD BE DONE ONLY BY AMENDMENT OF THE MANDATE. BUT NO MOVE TO DO THIS WAS MADE DURING THE TERM AT WHICH IT WENT DOWN. WHILE POWER TO ACT ON ITS MANDATE AFTER THE TERM EXPIRES SURVIVES TO PROTECT THE INTEGRITY OF THE COURT'S OWN PROCESSES, HAZEL-ATLAS GLASS CO. V HARTFORD CO., 322 U.S. 238, IT HAS NOT BEEN HELD TO SURVIVE FOR THE CONVENIENCE OF LITIGANTS. FAIRMONT CREAMERY CO. V MINNESOTA, 275 U.S. 70.'

FURTHER, SEE IN RE WASHINGTON AND GEORGETOWN RAILROAD COMPANY, 140 U.S. 91, WHERE THE COURT STATED:

"WE DO NOT CONSIDER THE QUESTION AS TO WHETHER INTEREST WAS ALLOWABLE BY LAW, OR RULE, OR STATUTE, ON THE ORIGINAL JUDGMENT OF THE SPECIAL TERM, OR WHETHER IT WOULD HAVE BEEN PROPER FOR THE SPECIAL TERM, IN RENDERING THE JUDGMENT, OR OTHERWISE, TO HAVE ALLOWED INTEREST UPON IT, OR WHETHER IT WOULD HAVE BEEN PROPER FOR THE GENERAL TERM TO DO SO; BUT WE RENDER OUR DECISION SOLELY UPON THE POINT THAT, AS NEITHER THE SPECIAL TERM NOR THE GENERAL TERM ALLOWED INTEREST ON THE JUDGMENT, AND AS THIS COURT AWARDED NO INTEREST IN ITS JUDGMENT OF AFFIRMANCE, ALL THAT THE GENERAL TERM COULD DO, AFTER THE MANDATE OF THIS COURT WENT DOWN, WAS TO ENTER A JUDGMENT CARRYING OUT THE MANDATE ACCORDING TO ITS TERMS, AND SIMPLY AFFIRMING THE PRIOR JUDGMENT OF THE GENERAL TERM, AND DIRECTING EXECUTION OF THE JUDGMENT OF THE SPECIAL TERM OF DECEMBER 18, 1885, WITH COSTS, AND WITHOUT INTEREST, AND OF THE JUDGMENT OF THE GENERAL TERM OF JUNE 28, 1886, FOR COSTS.'

SEE ALSO GAINES V RUGG, 148 U.S. 228.

IN LIGHT OF THE ABOVE-CITED COURT CASES IT WOULD APPEAR THAT THE DISTRICT COURT WAS WITHOUT LEGAL AUTHORITY IN THE INSTANT CASE TO AMEND ITS ORIGINAL JUDGMENT IN THE MANNER INDICATED ABOVE.