1. The circuit court, when its decree is affirmed and the
mandate filed there, must record the order of this court and
proceed with the execution of the decree.
2. For all the purposes of the case, a judgment of affirmance
here by a divided court is as effectual as if all the judges had
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This case shows that on or about the 11th of October, 1847, the
present appellant filed his bill in equity in the court below
Page 101 U. S. 556
against certain defendants for certain relief. After pleadings,
proofs, and hearing, that court dismissed his bill absolutely.
Appeal was thereupon taken in due form to this court. After one
hearing, we ordered a reargument. Upon the reargument, the decree
below was affirmed "by a divided court." When our mandate went
down, the present appellant, in May, 1858, asked the circuit court
that he might have leave to discontinue his suit, or if that could
not be done, that his "bill might be dismissed without prejudice."
All these several requests were refused, and the court simply
ordered execution on the decree which had been affirmed.
Afterwards, the appellant filed a new bill in the circuit court
to obtain the same relief as in the old suit, but setting up what
he called new matter. To this bill the former decree was pleaded in
bar, and the plea sustained by the circuit court, because the first
bill had been dismissed absolutely. From that decree an appeal was
taken to this court, and at the December Term, 1868, in
Durant v. Essex
7 Wall. 107, we decided that the decree,
absolute in its terms, dismissing the bill on the merits, was a
final determination of the controversy, and constituted a bar to
any further litigation of the same subject between the same
Thereupon on the 29th of June, 1874, the appellant filed a
petition in the circuit court setting up these facts and his newly
discovered matter, and asked that the decree affirmed here in 1858,
might "be revoked or so modified that his bill of complaint be
dismissed without prejudice to his further proceeding at law or
equity." This petition was denied, and to reverse that order the
present appeal was taken.
Waiving all questions as to the right of appeal from such an
order, we are clearly of the opinion that the circuit court could
do no otherwise than it did. On a mandate from this court affirming
a decree, the circuit court can only record our order and proceed
with the execution of its own decree as affirmed. It has no power
to rescind or modify what we have established. Our judgment by a
divided court is just as much our judgment for all the purposes of
the case in hand as if it had been unanimous. The result of the
appeal to us was an affirmance of what had been done below. After
the appeal had been taken, the
Page 101 U. S. 557
power of the court below over its own decree was gone. All it
could do after that was to obey our mandate when it was sent down.
We affirmed its decree and ordered execution. We might have ordered
a modification so as to declare that the dismissal should be
without prejudice. We did not do so. The circuit court had no power
after that to do what we might have done and did not do.