Rice v. Minnesota & Northwestern Railroad Company
62 U.S. 82 (1859)

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U.S. Supreme Court

Rice v. Minnesota & Northwestern Railroad Company, 62 U.S. 21 How. 82 82 (1859)

Rice v. Minnesota & Northwestern Railroad Company

62 U.S. (21 How.) 82

Syllabus

Where a common law case was dismissed at the last term for want of jurisdiction, the record showing that no final judgment was given in the court below, an affidavit setting forth that the final judgment was accidentally omitted from the record, and the production of a correct record, are not sufficient to sustain a motion to annul the order of dismissal and reinstate the case upon the docket.

After the judgment of this Court was passed upon the case and the term was closed, the function of the writ of error was over, and it cannot now be revived.

The distinction pointed out between a common law case and a case in admiralty.

Page 62 U. S. 83

This case was before the Court at the preceding term under the circumstances stated in the opinion of the Court.

Mr. Reverdy Johnson now moved to revoke the mandate and annul the judgment of dismissal which was entered at the last term.

The motion was as follows:

"This cause was on the calendar of the last term, No. 109. It was then, after argument, dismissed for want of jurisdiction upon the ground that the judgment below was not a final one within the meaning of the act of Congress. A mandate was issued to that effect by the Clerk of this Court, in due course, but has not as yet been filed in the court below. Since the decision of this Court, the clerk of the court below has transmitted to one of the counsel of the defendants in error an amended transcript by which it appears, as the fact was that the judgment below was a final one and that the failure to have had it appear in the first transcript was the error of the clerk or his deputy by whom that transcript was made up. Under these circumstances, the undersigned, as counsel for the defendants in error, moves the Court to revoke the mandate and annul the judgment of dismissal of the last term and order the case to stand on the calendar as it would stand at the present term if such judgment had not been rendered, but the case had been continued. He makes this motion because it is important to the interests of the defendants in error that the case be decided at the earliest moment upon its merits, and will, at the hearing of the motion, submit decisions of this Court in maintenance of this motion."

"REVERDY JOHNSON"

"Counsel for Defendants in Error"

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