Hughes's Appeal

Mr. Justice Mercur

delivered the opinion of the court,

The contention in regard to this fund is now here for the third time. It was a contest between the appellee in her own right, and the appellants as attaching creditors of her husband’s rights. The fund had been paid into court by an insurance company. The court below decreed the money to the attaching creditors. In Nippes’s Appeal, 25 P. F. Smith 472, the decree was reversed “and record remitted that the fund in court may be paid or distributed according to the principles of this opinion.” The court below thought the effect of the decree was to re-open the whole case, and therefore again referred it to an auditor, by whom additional evidence was taken. He again reported the former distribution, and it was confirmed by the court. Mrs. Nippes appealed therefrom to this court (Leg. Int. of 14th June 1878), when the following decree was entered: “ Decree reversed at the costs of the appellees. And now it is ordered that the fund in court, less the costs in the court below, be paid to the appellant, Margaret Nippes.” Since this decree, the court below, acting according to its understanding of the directions therein given, has ordered the appellants to pay into court certain moneys which it had ordered to be paid, and which were actually paid, to the appellants, nearly a year before Mrs. Nippes’s first appeal was taken. That order to pay money to the appellants was made thirty-nine days after the final confirmation of an auditor’s report decreeing it to them. The last order of the court ordering the money to be paid back, presents the error assigned.

The correctness of this order depends on the effect to be given to the last decree of this court. Its language in ordering payment to Mrs. Nippes is limited to “the fund in court.” It does not extend to or include any money or fund not “in court.” The decree did not contain any order of restitution. Whether the equities of the case would have required that it should have been done, cannot now be considered. It was not done. That decree we cannot now review nor change. We can only consider its commands and give effect to them. As restitution was not of course there is no legal presumption that it was not designedly withheld. The money which the appellants had received was not collected by them on execution, and therefore stands on a different footing: Allegheny Bank’s Appeal, 12 Wright 334 ; Cassel v. Duncan, 2 S. & R. 57; Kirk v. Eaton, 10 Id. 103.

*63 When an order of restitution is made, it is not merely collateral to the judgment of reversal, but is a part of the judgment itself: Duncan v. Kirkpatrick, 13 S. & R. 294. If then restitution be ordered, it is a constituent part of the judgment of reversal. If not found therein, it cannot be a part of the. judgment. The decree of this court covered the whole case. The power of the court below was limited to enforcing the decree thus made. That being the whole judgment of this court,' the Common Pleas could not enlarge it nor change its legal effect. The 11th sect, of the Act of 16th June 1836, Purd. Dig. 1351, pi. 29, authorizes the Supreme Court whenever it shall have rendered a judgment, or made a final decree or decision in any cause, action or matter brought into the same by writ of error, certiorari or appeal, to remit the record with its judgment or decree to the appropriate court, which judgment, decree or decision said court shall duly carry into execution or effect; or the Supreme Court may order execution thereof to be done by process issuing out of the same, and thereupon remit the record. The learned judge, therefore, erred in ingrafting on a decree of this court an order of restitution.

Order reversed.