Thurston v. Bullowa ( 1914 )

Mr. Justice Van Oksdel

delivered the opinion of the Court:

In this cause, the decree was reversed by this court, and the cause remanded for further proceedings not inconsistent with the opinion. [See ante, 18.] On the mandate, the court below refused to order defendants Lambert and Diggs to turn over to defendant Thurston the money on deposit in the Com-’ mercial National Bank, but offered to enter a decree dismissing the bill, with costs.

This suit was to enforce an alleged attorneys’ lien against the fund belonging to Thurston and impounded in the bank by Lambert and Diggs to await the determination of the case. The holding that plaintiffs were not entitled to a lien must of necessity operate to discharge the fund. But it is urged by plaintiffs that the fund should still be detained in bank to await the determination of their rights under a creditors’ bill which has since been filed, and where in an order of injunction is sought to restrain Diggs and Lambert from turning over the money. AYe are not here concerned with the doubtful right of plaintiffs to maintain a creditors’ bill, but with a proper decree disposing of the present suit, and, as indicated, the final decree must carry with it an order for the release of the fund.

Thurston has petitioned this court to recall the mandate and order the court below to require Diggs and Lambert to turn over the funds to her. AVe think it unnecessary to recall the mandate for that purpose. AVith this construction of the opinion before it, the court below will undoubtedly enter a decree dismissing the bill with costs, and ordering defendants Diggs and Lambert to forthwith turn over to defendant Thurston the $2,500 on deposit in the Commercial National Bank, together with all interest earned by said fund, or the interest thereon, while the same has been on deposit in said bank. The motions to recall the mandate and for writ of mandamus are, therefore, dismissed without prejudice, with costs to the appellant to bo taxed in the mandate of this court.

Dismissed without prejudice.

The Supreme Court of the United States denied a petition for the writ of certiorari April 15, 1914.