Where there was a blank in the record of the circuit court in
the taxation of the costs recovered by the plaintiff, and the
judgment being affirmed by this Court, a mandate with the same
blank went down to the circuit court, and a motion was there made
to open the original judgment for the purpose of taxing the costs,
which motion was refused by the court, such refusal cannot be
reached by a mandamus from this Court.
The refusal of the court was not a ministerial act, but an
exercise of judicial discretion. This Court could issue a mandamus
for the circuit court to proceed to judgment, but such a writ would
not be appropriate to the present case.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
A motion has been made for a rule on the District Judge of the
Massachusetts District to show cause why he should not proceed to
adjudicate and allow the petitioner's costs in an action at law in
the circuit court. The rule is moved for upon the district judge
because he alone was holding the circuit court when the decision
was made which has given rise to this application.
The case is this:
Many recovered a judgment in the Circuit
Page 55 U. S. 25
Court for the District of Massachusetts against Sizer and others
for the infringement of a patent right. The judgment was entered in
the following words:
"It is thereupon considered by the court that the said William
V. Many recover against the said George W. and Henry Sizer the sum
of seventeen hundred and thirty-three dollars and seventy-five
cents damages and costs of suit taxed at _____."
The judgment was rendered in 1848, and upon writ of error
brought by the defendants it was affirmed in this Court at December
term, 1851. The costs were not taxed in the circuit court before
the removal, and the blank left for them remained unfilled when the
judgment was affirmed. The usual mandate issued to the circuit
court to carry to judgment into execution, and the blank space for
costs was necessarily left in the mandate in order to conform to
the judgment of the court below as it appeared in the transcript
transmitted to this Court.
Upon the return of the case to the circuit court, the counsel
for the plaintiff moved that his costs be taxed by the clerk as and
for the October term, 1848, and that an order be made amending the
record of the judgment of the circuit court so as to insert therein
the amount of the taxation, and that an execution on the judgment
so amended be issued.
The court refused to allow the amendment to be made, and
overruled the motion. And we think its judgment, whether it be
correct or not, cannot be revised in the form of proceeding moved
for on behalf of the plaintiff. The decision of the circuit court
was not a mere ministerial act. It was the decision of a court of
competent jurisdiction made in the exercise of judicial authority
and discretion. This Court might unquestionably issue a mandamus to
the court below to proceed to judgment. But in this case the court
has proceeded to judgment upon the question submitted for its
decision. And whether that judgment be erroneous or not, this Court
has not jurisdiction to reexamine it in a proceeding by
mandamus.
The motion for a rule to show cause must therefore be
Overruled for want of jurisdiction.