A court mandate is controlling only regarding the specific matters addressed within its scope, leaving the lower court free to decide other issues on remand.
A petitioner seeking reimbursement for litigation expenses and counsel fees incurred while vindicating a trust interest filed a petition in district court after the main litigation had concluded. The district court denied the petition, reasoning that the prior mandate from the Supreme Court foreclosed further action and that the court term had expired. The Supreme Court holds that while a mandate is controlling as to matters within its compass, a lower court remains free to address other issues on remand. Because the claim for costs between solicitor and client was not part of the original proceedings, the mandate did not bar the court from exercising its inherent equitable power to award such costs in exceptional cases.
At page 168 Mandate controlling only within its compass78 citing cases“while a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.”
- Daniel J. Benway v. Craig J. Callahan & Others., 270 N.E.3d 1038 (Mass. App. Ct. 2025).unpublished(The general proposition which moved [the trial court] - - that it was bound to carry the mandate of the upper court into execution and could not consider the questions which the mandate laid at rest -- is indisputable)
- Commonwealth v. Edson C. Lopes., 270 N.E.3d 1033 (Mass. App. Ct. 2025).unpublished(The general proposition which moved [the trial court] -- that it was bound to carry the mandate of the upper court into execution and could not consider the questions which the mandate laid at rest -- is indisputable)
- Eshelman v. Auerbach, No. 7:16-cv-00018 (E.D.N.C. May 19, 2022).(While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.)
- Estes Express Lines v. United States, No. 11-597 (Fed. Cl. Aug. 8, 2017).unpublished(While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.)
- United States v. Bradley, 71 M.J. 13 (C.A.A.F. 2012).published (While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.)
- United States v. Faulkenberry, 759 F. Supp. 2d 915 (S.D. Ohio 2010).published (The general proposition that [the lower court] was bound to carry the mandate of the upper court into execution and could not consider the questions which the mandate rule laid at rest-is indisputable.)
- United States v. Ayers, 759 F. Supp. 2d 945 (S.D. Ohio 2010).published “the general proposition that the lower court was bound to carry the mandate of the upper court into execution and could not consider the questions which the mandate rule laid at rest-is indisuptable.”
- Kashner Davidson Sec. Corp. v. Mscisz, 601 F.3d 19 (1st Cir. 2010).published (While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.)
- Dudley v. Putnam Inv. Funds, 472 F. Supp. 2d 1102 (S.D. Ill. 2007).published “the general proposition which moved the district court - that it was bound to carry the mandate of the upper court into execution and could not consider the questions which the mandate laid at rest - is indisputable.”
- Price v. Glenmede Trust Co., N.A., 2026-Ohio-3480.publishedBank, 307 U.S. 161, 168 (1939). “‘[T]he Ohio Constitution “does not grant to a court of common pleas jurisdiction to review a prior mandate of a court of appeals.”’ Giancola v. Azem, 2018-Ohio-1694, ¶ 15 , quoting State ex rel.
Show 68 more citing cases
- Andrew v. Tinsley, 164 F.4th 789 (10th Cir. 2026).published Inc., 881 F.3d 793, 801 (10th Cir. 2018) (alteration in original) (quoting Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939)).
- Martin, No. 1:20-cv-02602 (D. Md. Apr. 20, 2026).Bank, 307 U.S. 161, 168 (1939)).
- Daniel T Quinn, No. 15-10217 (Bankr. D. Vt. Feb. 23, 2026).unpublishedThe trial court “cannot vary it or examine it for any other purpose than execution.”); Quern v. Jordan, 440 U.S. 332 n.18 (1979) (“a mandate is controlling as to matters within its compass.”); United States v. Quintieri, 306 F.3d 1217, 122…
- Hampton v. State of Utah Dep't of Corr., No. 1:18-cv-00079 (D. Utah Aug. 29, 2025).The district court is “bound to carry the mandate of the upper court into execution and [cannot] consider the questions which the mandate laid at rest.” Est. of Cummings by & through Montoya v. Cmty. Health Sys., Inc., 881 F.3d 793, 801 (1…
- State ex rel. Bowling v. DeWine, 2025-Ohio-2313.publishedBank, 307 U.S. 161, 168 (1939).
- Palin v. New York Times Co., 113 F.4th 245 (2d Cir. 2024).publishedCo., 352 F.3d 599, 606 (2d Cir. 2003) (quoting Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168 (1939)).
- Juarez v. O'Malley, No. 1:23-cv-03075 (E.D. Wash. May 20, 2024).The doctrine of the law of the case “is concerned primarily with 5 efficiency, and should not be applied when the evidence on remand is 6 substantially different, when the controlling law has changed, or when applying 7 the doctrine would…
- Bellon v. The PPG Emp. Life & Other Benefits Plan, No. 5:18-cv-00114 (N.D. W. Va. Mar. 27, 2024).Although the Defendants repeatedly cite the mandate rule in their filings, it appears there is some confusion about how the rule works: “Few legal precepts are as firmly established as the doctrine that the mandate of a higher court is ‘co…
- Clark, Jr v. Carl, No. 3:20-cv-00017 (W.D. Va. Mar. 13, 2024).Mandate Rule “Few legal precepts are as firmly established as the doctrine that the mandate of a higher court is ‘controlling as to matters within its compass.’” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (quoting Sprague v. Tico…
- Doe v. Fairfax Cnty. Sch. Bd., No. 1:18-cv-00614, 2023 WL 424265 (E.D. Va. Jan. 25, 2023).Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168 (1939).
- Berkeley Cnty. Sch. Dist. v. HUB Int'l Ltd., No. 21-1691 (4th Cir. Dec. 28, 2022).unpublished“controlling as to matters within its compass”
- Sekri, Inc. v. United States, No. 21-778 (Fed. Cl. Dec. 16, 2022).publishedBank, 307 U.S. 161, 168 (1939). 10 C.
- Thielen v. Comm'r of Soc. Sec., No. 2:21-cv-01126 (W.D. Wash. Apr. 1, 2022).Dkt. 12, pp. 5 16-18. 6 Under the rule of mandate, “the mandate of a higher court is controlling as to 7 matters within its compass.” Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939).
- Sidya v. World Telecom Exch. Commc'ns, 301 Va. 31 (2022).publishedThe mandate controls “only ‘as to matters within its compass.’” Id. (quoting Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939)).
- Juarez v. Kijakazi, No. 1:20-cv-03204 (E.D. Wash. Dec. 29, 2021).“The mandate of a higher court is controlling as to matters 17 within its compass.” Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168 (1939).
- United States v. Daniel F. Kellington, 217 F.3d 1084 (9th Cir. 2000).published
- Quern v. Jordan, 440 U.S. 332 (1979).published
- Elbert Manbeck v. Consolidation Coal Co. Dir., Off. of Workers' Comp. Programs, United States Dep't of Labor, 884 F.2d 580 (6th Cir. 1989).unpublished
- Exxon Corp. v. The United States, 931 F.2d 874 (Fed. Cir. 1991).published
- United States v. Alfred Martin Baxter, Jr., 946 F.2d 896 (6th Cir. 1991).unpublished
- United States v. Eric Forward Sanders, 16 F.3d 413 (4th Cir. 1994).published
- United States v. Werner, 36 F.3d 1095 (4th Cir. 1994).unpublished
- United States v. Titus Connally, 37 F.3d 1500 (6th Cir. 1994).published
- United States v. Roger Andrew Talk, A/K/A Roderick Talk, 72 F.3d 139 (10th Cir. 1995).published
- Fresenius USA, Inc. v. Baxter Int'l, Inc., 721 F.3d 1330 (Fed. Cir. 2013).published
- United States v. Starkie, No. 98-4415 (4th Cir. Jan. 7, 1999).unpublished
- Powell v. Commonwealth, 590 S.E.2d 537 (Va. 2004).published
- Commonwealth of Virginia & Dep't of Transp. v. AMEC Civil, LLC, No. 2134112 (Va. Ct. App. May 22, 2012).unpublished
- West v. West, 717 S.E.2d 831 (Va. Ct. App. 2011).published
- Donald C. McIntyre v. Garnet M. McIntyre, 491 S.E.2d 300 (Va. Ct. App. 1997).published
- Rudenberg v. Clark, 81 F. Supp. 42 (D. Mass. 1948).published
- United States Commodity Futures Trading Comm'n v. Lake Shore Asset Mgmt. Ltd., 540 F. Supp. 2d 994 (N.D. Ill. 2008).published
- Biggins v. The Hazen Paper Co., No. 96-1870 (1st Cir. Apr. 18, 1997).published
- Rose v. Lee, No. 00-12 (4th Cir. May 24, 2001).published
- Elijah Moore v. Ron Anderson, Superintendent, Indiana State Prison, 222 F.3d 280 (7th Cir. 2000).published
- In Re: Coudert Bros. LLP, No. 14-3688-bk (2d Cir. Dec. 29, 2015).published
- Cordell v. Klingsheim, 2018 COA 80, 434 P.3d 741.published
- Lummi Tribe v. United States, No. 18-1720 (Fed. Cir. Oct. 9, 2019).unpublished
- United States v. Trabelsi, No. 2006-0089, 2020 WL 1236652 (D.D.C. Mar. 13, 2020).published
- Frederick Engle v. Comm'r, T.C. Memo. 2020-69 (Tax Ct. 2020).unpublished
- Madeleine Connor v. Leah Stewart, No. 20-50150 (5th Cir. Dec. 7, 2020).unpublished
- Alabama-Coushatta Tribe of Texas v. United States, 28 Fed. Cl. 95 (Fed. Cl. 1993).published
- Carter v. Rector & Visitors of the Univ. of Virginia, 65 Va. Cir. 326 (Charlottesville Cir. Ct. 2004).published
- Thomas Creech v. Josh Tewalt, 84 F.4th 777 (9th Cir. 2023).published
- Washington v. Bishop, No. 1:16-cv-02374 (D. Md. Aug. 5, 2019).
- Kenny v. Wilson, No. 2:16-cv-02794 (D.S.C. Mar. 30, 2020).
- Juniper v. Davis, No. 3:11-cv-00746 (E.D. Va. Mar. 29, 2021).
- Key v. Comm'r of Soc. Sec., No. 3:19-cv-05993 (W.D. Wash. June 8, 2020).
- Kerr v. Marshall Univ. Bd. of Governors, No. 2:16-cv-06589 (S.D. W. Va. Sept. 21, 2017).
- Young v. Act Fast Delivery of West Virginia, Inc., No. 5:16-cv-09788 (S.D. W. Va. Apr. 10, 2020).
- Escano v. Concord Auto Protect, Inc., No. 2:21-cv-00223 (D.N.M. Aug. 19, 2025).
- Ute Indian Tribe of the Uintah & Ouray Indian Reservation v. United States, No. 18-359 (Fed. Cl. Dec. 31, 2025).published
- United States v. Castellanos, 608 F.3d 1010 (8th Cir. 2010).published
- Gilda Indus., Inc. v. United States, 300 F. App'x 912 (Fed. Cir. 2008).unpublished
- Designing Health, Inc. v. Erasmus, 226 F. App'x 976 (Fed. Cir. 2007).unpublished
- Washington Gas Light Co. v. Baker. Pub. Utils. Comm'n of Dist. of Columbia v. Baker. Case v. Baker, 195 F.2d 29 (D.C. Cir. 1951).published
- United States v. John William Butenko & Igor A. Ivanov. Appeal of Igor A. Ivanov, 494 F.2d 593 (3d Cir. 1974).published
- Elmer Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th Cir. 1982).published
- Tilley v. Mead Corp., 927 F.2d 756 (4th Cir. 1991).published
- Maddrix v. Dize, 153 F.2d 274 (4th Cir. 1946).published
- Pincus v. Pabst Brewing Co., 752 F. Supp. 871 (E.D. Wis. 1990).published
- Emmanuel v. Omaha Carpenters Dist. Council, 422 F. Supp. 204 (D. Neb. 1976).published
- Blasic v. Chugach Support Servs., Inc., 673 F. Supp. 2d 389 (D. Md. 2009).published
- McQuillion v. Duncan, 253 F. Supp. 2d 1131 (C.D. Cal. 2003).published
- Quinton Brown v. Nucor Corp., 785 F.3d 895 (4th Cir. 2015).published
- United States v. McMurrin, 72 M.J. 697 (N.M.C.C.A. 2013).published
- Holdeen v. Ratterree, 190 F. Supp. 752 (N.D.N.Y. 1960).published
- State ex rel. Ames v. Portage Cty. Bd. of Commrs., 2023-Ohio-3382, 225 N.E.3d 951.published
At page 167 Equity's power in funds for others' benefit58 citing cases“in exceptional cases and for dominating reasons of justice.”
- Vozzolo v. Air Canada, No. 7:20-cv-03503 (S.D.N.Y. Nov. 3, 2021). ([W]hen such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation— . . . the creation of a fund, as it were . . . —hardly touch the power of equity in doing justice a…)
- Parker Waichman, LLP v. Arnold Levin, No. 20-12100 (11th Cir. June 9, 2021).unpublished([W]hen such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation . . . hardly touch the power of equity in doing justice as between a party and the beneficiaries of…)
- Indep. Living Ctr. of S. California v. David Maxwell-Jolly, No. 2:08-cv-03315 (C.D. Cal. Aug. 6, 2019).([W]hen such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation—the absence of an avowed class suit or the creation of a fund, as it were, through stare decisis rat…)
- Fishman v. NPAS Solutions, LLC, No. 9:17-cv-80393 (S.D. Fla. Aug. 13, 2025).In Camden, the Eleventh Circuit held that a percentage fee award “must be determined upon the facts of each case.” 946 F.2d at 774 (quoting Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 167 (1939)).
- Gmcu v. Mathieu, No. 23-cv-3182 (Vt. Super. Ct. June 26, 2025). Although courts may “use their equity power to award fees ‘as the needs of justice dictate,’ ” id. (quoting In re Gadhue, 149 Vt. 322, 327 (1987)), “[t]his power may be invoked ‘only in exceptional cases and for dominating reasons of justi…
- Callier v. Pac W. Fin. LLC, No. 3:22-cv-00301 (W.D. Tex. Jan. 14, 2025).Bank, 307 U.S. 161, 167 (1939). 20 Id. 21 Fed. R.
- City of Fort Collins v. Open Int'l, LLC, No. 1:21-cv-02063 (D. Colo. Mar. 21, 2024). Notwithstanding the American Rule, the City points to the U.S. Supreme Court’s purported recognition that federal courts sitting in equity possess the power to award attorney’s fees in “exceptional cases and for dominating reasons of justi…
- snide v. burkeschoff, No. 734-11-12 wrcv (Vt. Super. Ct. Dec. 29, 2023).publishedIndeed, even without an authorizing statute, courts may deviate from the “general” rule stated above in “‘exceptional cases and for dominating reasons of justice.” DJ Painting, inc., 172 Vt. at 246 (quoting Sprague v. Ticonic Nat'l Bank, 3…
- Tsai v. Karlik, 2022 IL App (1st) 200845-U.unpublishedHowever, our supreme court also found that “ ‘ the absence of *** the creation of a fund *** hardly touch[es] the power of equity in doing justice as between a party and the beneficiaries of his litigation,’ [citation].” Id. at 575 (quotin…
- In Re Appeal of Gadhue, 544 A.2d 1151 (Vt. 1987).published
Show 47 more citing cases
- Entergy Arkansas, Inc. v. Nebraska, 226 F. Supp. 2d 1174 (D. Neb. 2002).published
- St. John v. Thompson, 854 S.E.2d 648 (Va. 2021).published
- In Re: San Juan v. Bieder, No. 94-1156 (1st Cir. May 31, 1995).published
- Jane Borda Feick, Joseph L. Borda, Jr., Anthony Borda, Charles Borda, Jr., & Ann Borda Marin v. Charles J. Fleener & Sally Fleener Cave, 653 F.2d 69 (2d Cir. 1981).published
- In Re: Hexcel Corp., Debtor. Brewer & Pritchard, P.C. Harvey Constr. Co., Hexcel Corp., 133 F.3d 927 (9th Cir. 1998).unpublished
- Southwick v. City of Rutland, 2011 VT 105, 30 A.3d 1298.published
- Chase v. Greyhound Lines, Inc., 195 S.E.2d 810 (W. Va. 1973).published
- Dj Painting, Inc. v. Baraw Enter., Inc., 776 A.2d 413 (Vt. 2001).published
- Cnty. of Inyo v. City of Los Angeles, 78 Cal. App. 3d 82 (Cal. Ct. App. 1978).published
- Monahan v. GMAC Mortg. Corp., 2005 VT 110, 893 A.2d 298.published
- Agway, Inc. v. Brooks, 790 A.2d 438 (Vt. 2001).published
- Vermont Women's Health Ctr. v. Operation Rescue, 617 A.2d 411 (Vt. 1992).published
- In Re: San Juan v. Nachman, No. 94-1156 (1st Cir. May 31, 1995).published
- Weisburgh v. Fid. Magellan Fund, 167 F.3d 735 (1st Cir. 1999).published
- Town of Milton Bd. of Health v. Armand Brisson, 2016 VT 56, 147 A.3d 990.published
- Snide v. Burke-Schoff, No. 734 (Vt. Super. Ct. Sept. 4, 2014).published
- Daniels v. The Elks Club of Hartford, Vt., Inc., No. 49 (Vt. Super. Ct. Feb. 26, 2010).published
- Toor & Toor Living Trust NOV, No. 18-1-10 Vtec (Vt. Super. Ct. Jan. 31, 2011).published
- Jaime Gonzalez v. Owens Corning, 813 F. App'x 53 (3d Cir. 2020).unpublished
- Kantrowitz, Goldhamer & Graifman, P.C. v. New York State Elec. & Gas Corp., 27 A.D.3d 872 (N.Y. App. Div. 3d Dep't 2006).published
- Yellow Poplar Lumber Co., Inc., No. 17-70882 (Bankr. W.D. Va. July 15, 2019).
- PLH, LLC v. Town of Bennington - Entry Regarding Motion to Dismiss, No. 21-2-18 Vtec (Vt. Super. Ct. July 11, 2018).published
- Bennington Town Plan Entergy Element - Entry Regarding Motion to Dismiss, No. 20-2-18 Vtec (Vt. Super. Ct. July 11, 2018).published
- Proformance Mfg., Inc. v. Teel Plastics, Inc., 944 N.W.2d 347 (Wis. Ct. App. 2020).unpublished
- Kevin A. McLain v. Patrick J. Keenan, 962 N.W.2d 267 (Wis. Ct. App. 2021).unpublished
- McIntosh v. Pac. Holding Co., 928 F. Supp. 1464 (D. Neb. 1996).published
- Cutler v. Am. Fed'n of Musicians of United States & Canada, 231 F. Supp. 845 (S.D.N.Y. 1964).published
- Universal Oil Prods. Co. v. Root Refining Co., 328 U.S. 575 (1946).published
- First Nat. Bank & Trust Co. Of Racine v. Vill. of Skokie (Two Cases), 190 F.2d 791 (1st Cir. 1951).published
- Carlisle, Brown & Carlisle, Attorneys at Law Petitioning v. Carolina Scenic Stages, in the Matter of Carolina Scenic Stages, Debtor, 242 F.2d 259 (4th Cir. 1957).published
- Missouri Pac. R.R. Co. v. Rose Slayton, Missouri Pac. R.R. Co. v. Alleghany Corp., Missouri Pac. R.R. Co. v. Betty Levin, Missouri Pac. R.R. Co. v. Jane Harris, 407 F.2d 1078 (8th Cir. 1969).published
- United States v. Fid. Philadelphia Trust Co., 459 F.2d 771 (3d Cir. 1972).published
- Hallmark Clinic v. North Carolina Dep't of Human Resources, 380 F. Supp. 1153 (E.D.N.C. 1974).published
- Metro. Life Ins. Co. v. Jordan, 221 F. Supp. 842 (W.D.N.C. 1963).published
- Glassman Const. Co., Inc. v. Maryland City Plaza, Inc., 371 F. Supp. 1154 (D. Md. 1974).published
- Kiser v. Miller, 364 F. Supp. 1311 (D.D.C. 1973).published
- Kerr v. Killian, 3 P.3d 1133 (Ariz. Ct. App. 2000).published
- Nationstar Mortg. LLC v. Robert R. Stafsholt, 2018 WI 21, 908 N.W.2d 784.published
- Brisacher v. Tracy-Collins Trust Co., 277 F.2d 519 (10th Cir. 1960).published
- Gonzalez v. Owens Corning Sales, LLC, 367 F. Supp. 3d 381 (W.D. Pa. 2019).published
- Crumady v. Joachim Hendrik Fisser, 176 F. Supp. 595 (D.N.J. 1959).published
- Forest Labs., Inc. v. Formulations, Inc., 320 F. Supp. 211 (E.D. Wis. 1970).published
- H. Molsen & Co. v. Flowers, 62 F.R.D. 14 (W.D. Tenn. 1973).published
- Reconstruction Fin. Corp. v. J. G. Menihan Corp., 42 F. Supp. 244 (W.D.N.Y. 1941).published
- Swan Carburetor Co. v. Chrysler Corp., 55 F. Supp. 794 (E.D. Mich. 1944).published
- Missouri Pac. R.R. v. Slayton, 407 F.2d 1078 (8th Cir. 1969).published
- Honda v. Mitchell, 419 F.2d 324 (D.C. Cir. 1969).published
At page 164 Historic equity jurisdiction allowing attorney's fees in suits48 citing cases“part of the historic equity jurisdiction of the federal courts.”
- Industria De Alimentos Zenu S.A.S. v. Latinfood U.S. Corp., No. 2:16-cv-06576 (D.N.J. Oct. 2, 2024).(Allowance of [attorney’s fees] in appropriate situations is part of the historic equity jurisdiction of the federal courts.)
- K.C. Ex Rel. Erica C. v. Torlakson, 762 F.3d 963 (9th Cir. 2014).published (Allowance of such costs in appropriate situations is part of the historic equity jurisdiction of the federal courts.)
- City of Fort Collins v. Open Int'l, LLC, No. 1:21-cv-02063 (D. Colo. Mar. 21, 2024). Notwithstanding the American Rule, the City points to the U.S. Supreme Court’s purported recognition that federal courts sitting in equity possess the power to award attorney’s fees in “exceptional cases and for dominating reasons of justi…
- Guar. Trust Co. v. York, 326 U.S. 99 (1945).published
- Chambers v. Nasco, Inc., 501 U.S. 32 (1991).published
- Lincoln Mills of Alabama v. Textile Workers Union of Am., CIO, 230 F.2d 81 (5th Cir. 1956).published
- C. G. Ball (Margaret Eliza Ball, Temp. Adm'x, Etc., Substituted in Place of C. G. Ball, Deceased) v. Victor Adding Mach. Co., 236 F.2d 170 (5th Cir. 1956).published
- United States v. Daniel F. Kellington, 217 F.3d 1084 (9th Cir. 2000).published
- Gabrielson v. City of Long Beach, 363 P.2d 883 (Cal. 1961).published
- Purcell v. Summers, 145 F.2d 979 (4th Cir. 1944).published
Show 35 more citing cases
- Black & Yates, Inc. v. Mahogany Ass'n, 129 F.2d 227 (3d Cir. 1942).published
- Grober v. Kahn, 219 A.2d 601 (N.J. 1966).published
- Danville Bldg. Ass'n v. Gates, 66 F. Supp. 706 (E.D. Ill. 1946).published
- Nat'l Ass'n of Reg'l Med. Programs, Inc. v. Weinberger, 396 F. Supp. 842 (D.D.C. 1975).published
- Scholtens v. Schneider, 671 N.E.2d 657 (Ill. 1996).published
- Regnery v. Meyers, 803 N.E.2d 504 (Ill. App. Ct. 1st Dist. 2003).published
- In Re Est. of Pfoertner, 700 N.E.2d 438 (Ill. App. Ct. 5th Dist. 1998).published
- Young v. Redman, 55 Cal. App. 3d 827 (Cal. Ct. App. 1976).published
- In Re Appeal of Gadhue, 544 A.2d 1151 (Vt. 1987).published
- Hagge v. Iowa Dep't of Revenue & Fin., 539 N.W.2d 148 (Iowa 1995).published
- Entergy Arkansas, Inc. v. Nebraska, 226 F. Supp. 2d 1174 (D. Neb. 2002).published
- Janovsky v. Am. Motorists Ins., 93 A.2d 1 (N.J. 1952).published
- Bata v. Cent.-Penn Nat'l Bank, 293 A.2d 343 (Pa. 1972).published
- Pennsylvania Ass'n of State Mental Hosp. Physicians v. State Employees' Ret. Bd., 483 A.2d 1003 (Pa. Commw. Ct. 1984).published
- Cohen v. Beneficial Indus. Loan Corp., 7 F.R.D. 352 (D.N.J. 1947).published
- Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993).published
- N.H. v. Blind Vendors, 2003 DNH 054 (D.N.H. 2003).published
- Vaughan v. Atkinson, 369 U.S. 527 (1962).published
- Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975).published
- City of Detroit v. Grinnell Corp., Manhattan-Ward, Inc. v. Grinnell Corp., 1225 Vine Street Bldg., Inc. v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974).published
- Overseas Dev. Disc Corp. v. Sangamo Constr. Co., Inc., 840 F.2d 1319 (7th Cir. 1988).published
- In Re Coordinated Pretrial Proceedings, Etc., 520 F. Supp. 635 (D. Minn. 1981).published
- McIntosh v. Pac. Holding Co., 928 F. Supp. 1464 (D. Neb. 1996).published
- Artvale, Inc. v. Rugby Fabrics Corp., 232 F. Supp. 814 (S.D.N.Y. 1964).published
- Seinfeld v. Robinson, 246 A.D.2d 291 (N.Y. App. Div. 1st Dep't 1998).published
- Wheeless v. Gelzer, 765 F. Supp. 741 (N.D. Ga. 1991).published
- Mt "Baltic Commander" Schiffahrtsgesellschaft mbH & Co. KG v. Massachusetts Port Auth., 918 F. Supp. 2d 105 (D. Mass. 2013).published
- Am. Auto. Ass'n v. Spiegel, 128 F. Supp. 794 (E.D.N.Y. 1955).published
- Cutler v. Am. Fed'n of Musicians of United States & Canada, 231 F. Supp. 845 (S.D.N.Y. 1964).published
- Lee Nat'l Corp. v. Kansas City S. Indus., Inc., 50 F.R.D. 412 (S.D.N.Y. 1970).published
- Bernstein v. Brenner, 320 F. Supp. 1080 (D.C. Cir. 1970).published
- Int'l Rectifier Corp. v. Am. Cyanamid Co., 520 F. Supp. 635 (D. Minn. 1981).published
- Gartner v. Soloner, 384 F.2d 348 (3d Cir. 1967).published
- Overseas Dev. Disc Corp. v. Sangamo Constr. Co., 840 F.2d 1319 (7th Cir. 1988).published
- In re First Peoples Bank Shareholders Litig., 121 F.R.D. 219 (D.N.J. 1988).published
At page 166 Foundation of equity power to grant litigation reimbursements47 citing cases[A] party recovering a fund for the benefit of others may recover his costs, including attorneys’ fees, from the fund itself or directly from the other parties enjoying the benefit.
- Vozzolo v. Air Canada, No. 7:20-cv-03503 (S.D.N.Y. Nov. 3, 2021). Sprague, 307 U.S. at 167 (“[W]hen such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation— . . . the creation of a fund, as it were . . . —hardly touch the power of equity in doing jus…
- Beacon Assocs. LLC I v. Beacon Assocs. Mgmt. Corp., No. 1:14-cv-02294 (S.D.N.Y. May 7, 2020).([A] party recovering a fund for the benefit of others may recover his costs, including attorneys’ fees, from the fund itself or directly from the other parties enjoying the benefit.)
- Mark A Nordlicht, No. 20-22782 (Bankr. S.D.N.Y. Aug. 13, 2025).May 23, 2013) (citing Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166-67 (1939); Cent.
- McWilliams v. Geisinger Health Plan, No. 4:20-cv-01236 (M.D. Pa. Nov. 16, 2022).Co. Am. Sales Practices Litig., 148 F.3d 283, 333 (3d Cir. 1998)). 124 See id. at 244 (citing Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166-67 ; Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166-67 (1939)). 125 Decl. of John Fedorko, Doc…
- Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc., No. 93-2283 (5th Cir. Sept. 15, 1993).published
- Mills v. Elec. Auto-Lite Co., 396 U.S. 375 (1970).published
- Hall v. Cole, 412 U.S. 1 (1973).published
- Bloomer v. Liberty Mut. Ins., 445 U.S. 74 (1980).published
- Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).published
- Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987).published
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- Montgomery Ward & Co., Inc. v. Pac. Indem. Co., 557 F.2d 51 (3d Cir. 1977).published
- Bergman v. United States, 844 F.2d 353 (6th Cir. 1988).published
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- Jones v. H. F. Ahmanson & Co., 460 P.2d 464 (Cal. 1969).published
- Costello v. City of Cape Coral, 693 So. 2d 48 (Fla. 2d DCA 1997).published
- Stumpff v. Katschor, 637 P.2d 855 (Okla. 1981).published
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- Reynolds v. First Alabama Bank of Montgomery, 471 So. 2d 1238 (Ala. 1985).published
- James v. Alabama Coalition for Equity, Inc., 713 So. 2d 937 (Ala. 1997).published
- Buell v. Sec. Gen. Life Ins., 784 F. Supp. 1533 (D. Colo. 1992).published
- Malinou v. Powers, 333 A.2d 420 (R.I. 1975).published
- Linker v. Allstate Ins., 794 N.E.2d 945 (Ill. App. Ct. 1st Dist. 2003).published
- Bruno v. Bell, 91 Cal. App. 3d 776 (Cal. Ct. App. 1979).published
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- Oklahoma Tax Comm'n v. Ricks, 885 P.2d 1336 (Okla. 1994).published
- Wal-Mart Stores, Inc. Assocs.' Health & Welfare Plan & Admin. Comm., Adm'r of the Plan v. Denise Wells, 213 F.3d 398 (7th Cir. 2000).published
- Brytus v. Spang & Co., 203 F.3d 238 (3d Cir. 2000).
- Appeal of Wood, No. 121-07-03 Vtec (Vt. Super. Ct. June 17, 2008).published
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- Johnson v. Mun. Employees', Officers', & Officials' Annuity & Benefit Fund of Chicago, 2018 IL App (1st) 170732.published
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- Cutler v. Am. Fed'n of Musicians of United States & Canada, 231 F. Supp. 845 (S.D.N.Y. 1964).published
At page 170 Viewing fee petition as independent proceeding supplemental to decree21 citing casesholding that because a petition for fees is “an independent proceeding supplemental to the original,” the suggestion “that it came after the end of the term at which the main decree was entered and [is] therefore too late” was unavailing
- United States v. GE, 397 F. App'x 144 (6th Cir. 2010).unpublished([W]e view the petition for [attorney’s fees] as an independent proceeding supplemental to the original proceeding . . .)
- BRADLEY v. United States, No. 19-400 (Fed. Cl. Dec. 17, 2025).publishedId. at 200-203 (citing Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 170 (1939)).
- Kari Lake v. Bill Gates, 130 F.4th 1054 (9th Cir. 2025).publishedDISCUSSION Although the substantive claim in this matter was dismissed for lack of standing, federal courts maintain jurisdiction over “collateral issues after an action is no longer pending,” including costs, attorneys’ fees, or sanctions…
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- Sealed v. Sealed, No. 22-10116 (5th Cir. Aug. 15, 2022).unpublishedBut a motion for attorney fees is not a “claim.” It is rather an 3 No. 22-10116 “‘independent proceeding’ supplemental to the original proceeding.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990) (quoting Sprague v. Ticonic Natio…
- Shenecqua Butt v. United Bhd., 999 F.3d 882 (3d Cir. 2021).published(holding that because a petition for fees is “an independent proceeding supplemental to the original,” the suggestion “that it came after the end of the term at which the main decree was entered and [is] therefore too la…)
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- Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990).published
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- Kaminski v. Bass, 567 N.W.2d 118 (Neb. 1997).published
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- Phillip Carnes Jennifer Carnes Kathryn Schaller Kevin Schaller H. Gene Carnes v. Michael A. Zamani Nancy Zamani, 488 F.3d 1057 (9th Cir. 2007).published
- Stephan Bechuck v. Home Depot USA, Inc., e, No. 15-20219 (5th Cir. Feb. 18, 2016).published
- Whispell v. United States, No. 09-315 (Fed. Cl. Nov. 22, 2016).unpublished
- Donald Zimmerman v. City of Austin, Texas, 969 F.3d 564 (5th Cir. 2020).published
- Moultrie v. Wall, 143 So. 3d 128 (Ala. 2013).published
- Valley Disposal, Inc. v. Cent. Vermont Solid Waste Mgmt. Dist., 71 F.3d 1053 (2d Cir. 1995).published
At page 169 Distinguishing collateral fee inquiry from final judgment7 citing casesattorney's appeal from District Court's refusal to award fees on common-fund theory
- Boeing Co. v. Van Gemert, 444 U.S. 472 (1980).published
- White v. New Hampshire Dep't of Emp. Sec., 455 U.S. 445 (1982).published
- Gilmore v. United States, 131 F.2d 873 (8th Cir. 1942).published
- United States v. Schaeffer, 33 F. Supp. 547 (D. Md. 1940).published
- David New v. Lavinia Dumitrache, 604 S.W.3d 1 (Tenn. 2020).published
- United States v. WEISS, 461 F. Supp. 3d 183 (E.D. Pa. 2020).published
83 L. Ed. at 1188 Federal court authority regarding awarding legal costs3 citing cases
- Richard Nixon v. Honorable Charles R. Richey, United States Dist. Court for the Dist. of Columbia, 513 F.2d 430 (D.C. Cir. 1975).published
- Betty J. Campbell v. Harry D. Campbell, No. 1481102 (Va. Ct. App. Aug. 9, 2011).unpublished
- State Ex Rel. Weede v. Bechtel, 56 N.W.2d 173 (Iowa 1952).published
v.
TICONIC NATIONAL BANK Et Al.
delivered the opinion of the Court.
The case is here on certiorari to the Circuit Court of Appeals for the First Circuit which affirmed, 99 F. 2d 583, a decree of the District Court for the District of Maine, 23 F. Supp. 59, denying a petition for the allowance of counsel fees and expenses over and above the regular taxable costs. Certiorari was granted, 306 U. S. 623, because an important question of judicial administration pertaining to the exercise of federal equity jurisdiction was raiséd.
This case is another phase of a litigation that has been here before, Ticonic Bank v. Sprague, 303 U. S. 406, the circumstances of which must be summarized to lay bare the problem now before us. On March 28, 1931, Lottie F. Sprague, the petitioner here, delivered $5,022.18 to the Ticonic National Bank of Waterville, Maine, in trust in which she and others had beneficial interests. Under the trust agreement part of the amount was to be deposited by the Bank in its savings department. The rest of the funds was deposited by the Bank in its commercial checking department, as were other trust funds awaiting investment or distribution, secured by an appropriate amount of bonds set aside in its trust department as required by § 11 (k) of the amended Federal Reserve Act, 38 Stat. 262, as amended, 49 Stat. 722. On August 3,[*163] 1931, the People’s National Bank took over all the assets, including these earmarked bonds, and assumed the indebtedness of the Ticonic Bank. . On March 4, 1933, the People’s Bank closed, and both banks went into the hands of a receiver. Thereafter, on July 29, 1935, the petitioner and her beneficiary filed a bill in the District Court against the banks and their receiver to impress upon the proceeds of the bonds a lien for their trust deposit. The District Court sustained the claim and entered a decree for the discharge of the lien with interest from the date of the filing of the bill and payment to the plaintiffs of “their taxable costs,” 14 F. Supp. 900. On appeal, the Circuit Court of Appeals at first disallowed interest, 87 F. 2d 365, but on rehearing affirmed the decree of the District Court “with costs,” 90 F. 2d 641. This Court then granted certiorari “limited to the question as to the allowance of interest,” 302 U. S. 675. Before its disposition, Ticonic Bank v. Sprague, supra, the present proceedings were begun.
Petitioner alleged that, by vindicating her claim to a lien on the proceeds of the earmarked bonds to the amount of her trust funds, she had established as.a matter of law the right to recovery in relation to fourteen trusts in situations like her own; that she had prosecuted the litigation solely át her Own expense; that although the total assets of the bank were not sufficient to satisfy the unsecured creditors, the proceeds of the bonds were more than sufficient to discharge all trust obligations; and she therefore prayed the court for reasonable counsel fees and litigation expenses to be paid out of the proceeds of the bonds.
The District Court held that it “had no authority to grant the petition” on the ground that, after the appeal from its decree in 14 F.' Supp. 900, it “had no further function to perform other than to carry out the mandate of the Supreme Court when received. The mandate from[*164] the Supreme Court simply had the effect of directing this court to carry out the mandate of the Circuit Court of Appeals which in turn, simply, in effect, required this court to execute its original final decree by issuing its execution for a certain sum of money with costs of both courts.” The Circuit Court of Appeals affirmed “for the reasons stated” by the District Court, and “for the further reason that the term of court at which the decree was entered, when the petition to amend was filed, had long since passed . . .” .Obviously, both courts disposed of the petition not as a considered disallowance of attorney’s fees and litigation expenses in the circumstances of the particular suit but because they deemed award of such costs beyond the power of the District Court.
Whether action by the District Court on the merits of the petition was foreclosed by this Court’s mandate in Ticonic Bank v. Sprague, supra , and was .further limited by restrictions which terms of court may impose, are questions subsidiary to the power of federal courts in equity suits to allow counsel fees and other expenses entailed by the litigation not included in the ordinary taxable costs recognized by statute.
Allowance of such costs in appropriate situations is part of the historic equity jurisdiction of the federal courts. The suits “in equity” of which these courts were given “cognizance” ever since the First Judiciary Act, constituted that body of remedies, procedures and practices which theretofore had been evolved in the English Court of Chancery, [1] subject, of course, to modifications[*165] by Congress* e. g., Michaelson v. United States, 266 U. S. 42. The sources bearing on eighteenth-century English practice — reports and manuals — uniformly support the power not only to give a fixed allowance for the various steps in a suit, what are known as costs “between party and party,” but also as much of. the entire, expenses of the litigation of one of the parties as fair justice to the other party will permit, technically known as costs “as between solicitor and client.” [2] To be sure,[*166] the usual case is one where through the complainant’s efforts a fund is recovered in which others share. Sometimes the complainant avowedly sues for the common interest [3] while in others his litigation results in a fund for a group though he did not profess to be their representative. [4] The present case presents a variant of the latter situation. In her main suit the petitioner neither avowed herself to be the representative of a class nor did she automatically establish a fund in which others could participate. But in view of the consequences of stare decisis, the petitioner by establishing her claim necessarily established the claims of fourteen other trusts pertaining to the same bonds.
That the party in ,a situation like the present neither purported to sue for a class nor formally established by' litigation a fund available to the class, does not seem to be a differentiating factor so far as it affects the source of the recognized power of equity to grant reimbursements of the kind for which the petitioner in this case appealed to the chancellor’s discretion. Plainly the foundation for the historic practice of granting reimbursement for the costs of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation. [5][*167] Whether one professes to sue representatively or formally makes a fund available for others may, of course, be a relevant circumstance in making the fund liable for his costs in producing it.. But when such a fund is for all. practical purposes created for the benefit of others, the formalities of the litigation — the absence of an avowed class suit or the creation of a fund, as it were, through stare decisis rather than through a decree — hardly touch the power of equity in doing justice- as between a party and the beneficiaries of his litigation. As in much else that pertains to equitable jurisdiction, individualization in the exercise of a discretionary power will alone retain equity as a living system and save it from sterility. In the actual exercise of the power to award costs “as between solicitor and client” all sorts of practical distinctions have been taken in distributing the costs of the burden of the litigation. [6] And so, the circumstances under which the petitioner enforced the fiduciary obligation of the Ticonic Bank — the relation of its vindication to beneficiaries similarly situated but not actually before the court, as well as the interest of the common creditors where the funds of the bank are not sufficient to pay them in full, and doubtless .other considerations — must enter into the ultimate judgment-of the» District Court as to the fairness of making an award, or the extent of such award, “as between solicitor and client” in this case. In any event such allowances are appropriate only in exceptional cases and for dominating reasons of justice. But here we are concerned solely with the power to entertain such a petition.
Without considering the historic authority of a court of equity in such matters,- the District Court deemed itself[*168] powerless because foreclosed by the mandate m Ticomc Bank v. Sprague, supra. The general proposition which moved that Court — that it was bound to carry the mandate of the upper court into execution and could not consider the questions which the mandate laid at rest— is indisputable. Compare Kansas City Southern Ry. Co. v. Guardian Trust Co., 281 U. S. 1. [7] But that leaves us still to consider whether the immediate issue now in controversy was disposed of in the main litigation and therefore foreclosed by the mandate. .While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues. See In re Sanford Fork & Tool Co., 160 U. S. 247; Ex parte Century Indemnity Co., 305 U. S. 354. Certainly the claim for “as between solicitor and client” costs was not directly in issue in the original proceedings by Sprague. It was neither before the Circuit Court of Appeals nor before this Court; Its disposition, therefore, by the mandate of either Court could be implied only if a claim for such costs was necessarily implied in the claim in the original suit, and its failure to ask for such costs an implied waiver. These implications are repelled by the basis on which such costs are granted. They are not of a routine character like ordinary taxable costs; they are-contingent upon the exigencies of equitable litigation, the final disposition of which in its entire process including appeal places such a claim in much better perspective than it would have at an earlier stage. Such are the considerations which[*169] underlay the decision in Trustees v. Greenough, 105 U. S. 527, in holding that an order allowing costs “as between solicitor and client” was a final judgment for purposes of appeal because “the inquiry was a collateral one, havr ing a distinct and independent character.” [8] We, therefore, hold that the issue in the instant case is sufficiently different from that presented by the ordinary qúestions regarding taxable costs that it was impliedly covered neither by the original decree nor by the mandates, and that neither constituted a bar to the disposal of the petition below on its merits.
Finally, we must notice the separate ground taken by the Circuit Court of Appeals on the basis of what it deemed the requirements of terms of court. The new Rules of Civil Procedure have rendered anachronistic the technical niceties pertaining to terms of court as to both law and equity, [9] but the- ruling of the District Court here[*170] in question was made prior to the operation of the new Rules. Since we view the petition for reimbursement as an independent proceeding supplemental to the original proceeding and not a request for a modification of the original decree, the suggestion of the Circuit Court. of Appeals — that it came after the end of the term at which the main decree was entered and therefore too late — falls.
The decision of the Circuit Court of Appeals must be reversed so that the District Court may entertain the petition for reimbursement in the light of the appropriate equitable considerations.
Reversed.
Mr. Justice McReynolds and Mr. Justice Butler concur in the result. Mr. Justice Douglas took no part in the consideration or decision of this case.See Robinson v. Campbell, 3 Wheat. 212, 222; Boyle v. Zacharie, 6 Pet. 648, 658; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 563; Payne v. Hook, 7 Wall. 425, 430; Rule XXXIII, Rules of Practice for the Courts-of Equity of the(United States (1822) 7 Wheat v, xiii; Rule XC, Rules of'Practice for the Courts of Equity of the United States (1842) 1 How. xli, lxix; 1 Story, Equity Jurisprudence (14th ed.) §§ 57, 58; 1 Street, Federal Equity Practice, § 97.
See Lomax v. Hide, 2 Vern. 185; Ramsden v. Langley, 2 Vern. 536; Attorney General v. Carte, 1 Dick. 113; Attorney General v. Haberdashers’ Co. and Tonna, 4 Brown C. C. 179; Ex parte Thorp, 1 Ves. Jun. 394; Moggridge v. Thackwell, 1 Ves. Jun. 464; Dungey v. Angove, 2 Ves. Jun. 304. See 2 Adair, Law of Costs in Courts of Equity, 81, 87, 179; 2 Barbour, Chancery Practice (2d ed.) 889-894; Beames, Costs in Equity (2d ed.) 144-146; 3 Daniell’s, Chancery Pleading and Practice (2d ed.) 1434r-35; 2 Smith, Chancery Practice (2d ed.) 697-700. One must, of course, be not unmindful of the inadequacy of eighteenth-century chancery reports, see 2 York, Life of Lord Chancellor Hardwicre 429, particularly as to matters of costs. See Beames, Costs in Equity (Advertisement to Second Edition). But the current of authority is uniform and unequivocal. -
The power of the federal courts to give costs was recognized by implication in the First Judiciary Act. Act of September 24, 1789, Ch. 20, § 20, 1 Stat. 83. The statutory-system prior to 1853 required “party and party” costs to be taxed on the basis of the fees allowed by state practice, but the Act of Feb. 26, Í853, Ch. 80, 10 .Stat. 161, set a uniform scale of fees for “party and party” costs in the federal courts. See Costs in Civil Cases, 30 Fed. Cas. 18, 284; Street, Federal Equity'Practice §§ 1984^-1988. As to costs “as between solicitor and client,” the English practice was followed by the Supreme Court and it was held that the allowance of such costs' was within the authority of the federal courts. Trustees v. Greenough, 105 U. S. 527; Dodge v. Tulleys, 144 U. S. 451; Meddaugh v. Wilson, 151 U. S. 333; compare Central R. Co. v Pettus, 113 U. S. 116; see 4 Cyclopedia of Federal Procedure § Í086; 2 Foster, Federal Practice (6th ed.) § 422; 2 Street, Federal Equity Practice §§ 2033-2048. Compare the practice in admiralty, shown in The Apollon, 9 Wheat. 362; Canter v. Insurance Companies, 3 Pet. 307. The pro[*166] visions of the. fee bill of 1853 that certain specified fees and no others shall be taxed to attorneys in the courts of the United States applies only to “party and party” costs. Trustees v. Greenough, 105 U. S. 527.
E. g., Tootal v. Spicer, 4 Sim. 510; Hood v. Wilson, 2 Russ. & M. 687; Stanton v. Hatfield, 1 Keen 358; Sutton v. Doggett, 3 Beav. 9; Goldsmith v. Russell, 5 De. G. M. & G. 547; Henderson v. Dodds, L. R. 2 Eq. 532; Ferguson v. Gibson, L. R. 14 Eq. 379; Jervis v. Wolferstan, L. R. 18 Eq. 18.
E. g., Thomas v. Jones, 1 Dr. & Sm. 134; compare In re Richardson, 14 Ch. Div. 611.
For examples of the discretiohary nature of the authority of equity to tax' costs, see,S Daniell’s, Chancery Pleading and Pkac-[*167] tics (2d ed.) 1381-1410; 2 Street, Federal Equity Practice §§ 1994r-2007.
See 3 Daniell’s, ChaNcery PleadiNG and Practice (2d ed.) 1434r-1440; 2 Street, Federal Equity Practice §§ 2033-2048.
In Kansas City Southern Ry. Co. v. Guardian Trust Co., supra, costs “as between solicitor and client” had been asked in suggestions on appeal from the original disposition of the cause. The Circuit Court of Appeals, while affirming on the merits, passed on these suggestions in a way interpreted by this Court to allow only “party and party” costs. No appeal had been taken on this point. A subsequent application in. the District Court for “solicitor and client” costs was therefore held barred.
In Trustees v. Greenough, suit was brought by a holder of certain bonds- against the trustees of the .state improvement fund alleging mismanagement and waste of the fund which was to secure the bonds and asking that his claim be allowed, that the fund be charged with the payment thereof, and that an accounting be had. This relief was granted, much property was reclaimed to the fund and agents were appointed for the sale of the property of the fund for the purposes of liquidation. During the liquidation, the holder of the bonds who had initiated the proceedings filed his petition for an allowance from the fund of his costs as between solicitor and client. Such costs were allowed without any suggestion'that the application for them was not timely.
Prior to the adoption of the new Rules of Civil Procedure, a final decree in a suit in equity could be revised only during the term of court of its entry. Cameron v. M’Roberts, 3 Wheat. 591; Buckeye Co. v. Hocking Valley Co., 269 U. S. 42. The same'limitation existed on the power of a district court to grant a rehearing of an appealable decree. Equity Rule 88. These time limitations are no longer applicable. Rules 59 and 60 of the Rules of Civil Procedure set forth the time in which these actions may be taken, but under those sections the passage of the term of court is not material. Indeed,[*170] Rule 6 (c) provides: “The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the expiration of a term'of court. The expiration of a term of court in no way affects the power of a district court to do any act or take any proceeding in any civil action which has been pending before it.” It was stated in the Notes to the Rules of Civil Procedure, prepared by the Advisory Committee, March 1938, that this section “eliminates the difficulties caused by the expiration of terms of court.”