The judgment in this case was reversed in this Court for want of
jurisdiction in the circuit court,
130 U. S. 130 U.S.
341. The reversal was accompanied by an order that the defendants
recover their costs in this Court and have execution therefor, and
the cause was remanded to the circuit court for further
proceedings. Upon filing the mandate in the Circuit Court, the
defendants moved that they have judgment against the plaintiff for
their costs in this Court, and for the costs of the transcript from
the circuit court, and that execution issue therefor. The
defendants, alleging in their motion that certain sums had been
collected on the judgment, also moved for a summary inquiry as to
the amount, and that they have judgment for the same, with
interest, and they having proved that there was collected by the
plaintiff upon the judgment, by supplementary proceedings in aid of
the execution thereon, the sum of $629.23, the court rendered
judgment that the defendants recover that sum with interest and
costs, and that the action be dismissed for want of jurisdiction as
to the subject matter of the suit.
Held that the circuit
court had jurisdiction to correct by its own order that which,
according to the judgment of this Court, it had no authority to do
in the first instance, and that the judgment should be
affirmed.
The case, as stated by the Court, was as follows:
The Northwestern Fuel Company, a corporation of Minnesota,
brought an action in the Circuit Court of the United States for the
Northern District of Iowa against the defendants, citizens of that
state, to recover the sum of $1,309.50, claimed upon a contract
made in July, 1881, between them and the What Cheer Land and Coal
Company, alleged to be doing business in that state, and by that
company assigned to the plaintiff. Judgment was recovered upon it
for $1,402.47, and the defendants brought the case on a writ of
error to this Court, where it was reversed upon the ground that the
record did not show affirmatively that an action could have been
brought upon it in the federal court if no assignment had been
Page 139 U. S. 217
made, the act of 1875 declaring that no circuit or district
court should
"have cognizance of any suit founded on contract in favor of an
assignee unless a suit might have been prosecuted in such court to
recover thereon if no assignment had been made, except in cases of
promissory notes negotiable by the law merchant and bills of
exchange."
18 Stat. 470;
Brock v. Northwestern Fuel Co.,
130 U. S. 341.
The reversal was accompanied by an order that the defendants
recover their costs in this Court, and have execution therefor, and
the cause was remanded to the circuit court for further
proceedings.
Upon filing the mandate in the circuit court, the defendants
moved that they have judgment against the plaintiff for their costs
in this Court, and for the costs of the transcript from the circuit
court, and that execution issue therefor. The defendants, alleging
in their motion that certain sums had been collected on the
judgment, also moved for a summary inquiry as to the amount, and
that they have judgment for the same, with interest, and further,
that the suit be dismissed with costs unless the plaintiff should
forthwith, by amendment, show a cause of action of which the court
had jurisdiction. The court ordered that the defendants have
execution against the plaintiff for the costs mentioned, and
afterwards gave the plaintiff leave on or before September 1, 1889,
to file amendments to the petition as to the jurisdiction of the
court. It also gave judgment for the amount paid for the transcript
of the record for this Court.
The plaintiff failed to amend its petition within the time
designated showing jurisdiction in the court, and the defendants
moved that the action be dismissed, and they having proved that
there was collected by the plaintiff upon the judgment, by
supplementary proceedings in aid of the execution thereon, the sum
of $639.23, the court rendered judgment as follows:
"Now, this 4th day of December, A.D. 1889, this cause again
coming before the court, upon the motion by defendants for a
judgment in restitution for money collected by the plaintiff on the
original judgment herein, which original judgment was
Page 139 U. S. 218
reversed by the Supreme Court, as it appears from its mandate as
filed herein, and plaintiff appearing by Messrs. Henderson, Hurd,
Daniels & Kiesel, its attorneys, and the defendants appearing
by Charles A. Clark, their attorney, and the plaintiff having
failed to amend its pleadings so as to show jurisdiction of this
court as to the subject matter of the action, and the court finding
that the plaintiff has collected from the defendants on the
original judgment herein in favor of plaintiff and against
defendants the sum of six hundred twenty-nine and 23/100 dollars on
the first day of May, 1884, which said sum, with interest thereon
at six percentum per annum from said date, the defendants are
entitled to recover back from plaintiff, because said original
judgment herein has been and is reversed and set aside:"
"It is therefore ordered and adjudged by the court that the
defendants, R. G. Brock and T. G. McKenzie, do have and recover of
and from the plaintiff, the Northwestern Fuel Company, the sum of
eight hundred and forty dollars ($840), with interest thereon at
six percent per annum until paid, together with the costs of this
action, taxed at $22.70, with judgment for said costs against C. W.
Eaton, surety on the cost bond filed herein, and that said
plaintiff pay said �ums into this Court within twenty (20) days, in
default of which payment defendants shall have execution therefor.
To all of which the plaintiff at the time excepted."
"And it is further ordered that this action be now dismissed for
want of jurisdiction as to the subject matter of this suit."
To reverse this judgment, the case is brought to this Court on
writ of error under the Act of Congress of February 25, 1889, 25
Stat. 236, p. 693.
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
Page 139 U. S. 219
The alleged error of the court below is that it had no
jurisdiction to render judgment for restitution of the money
collected on the reversed judgment. This is put forth in different
forms, but in no way variant in substance. The gist of the whole
complaint is that the reversal by this Court being for want of
jurisdiction in the circuit court -- such jurisdiction not
affirmatively appearing -- that court had no authority to act
further in the matter than as directed by the mandate, and that
that went only to the reversal of its judgment and the collection
of the costs incurred in the appellate court.
This position is supposed to be supported by those decisions
which hold that when a case is dismissed for want of jurisdiction
in the circuit court to entertain the action or render the judgment
entered, the power of that court to award costs is gone.
Mayor v.
Cooper, 6 Wall. 247,
73 U. S. 250;
Hornthall v.
Collector, 9 Wall. 560,
76 U. S. 566;
Mansfield Railroad Co. v. Swan, 111 U.
S. 379,
111 U. S.
387.
But here the jurisdiction exercised by the court below was only
to correct by its own order that which, according to the judgment
of its appellate court, it had no authority to do in the first
instance, and the power is inherent in every court, while the
subject of controversy is in its custody and the parties are before
it, to undo what it had no authority to do originally, and in which
it therefore acted erroneously, and to restore, so far as possible,
the parties to their former position. Jurisdiction to correct what
had been wrongfully done must remain with the court so long as the
parties and the case are properly before it, either in the first
instance or when remanded to it by an appellate tribunal.
The right of restitution of what one has lost by the enforcement
of a judgment subsequently reversed has been recognized in the law
of England from a very early period, and the only question of
discussion there has been as to the proceedings to enforce the
restitution. Thus, in
Anonymous, 2 Salkeld 588, it was
held by Holt, C.J., that
"where the plaintiff has execution, and the money is levied and
paid, and that judgment is afterwards reversed, there, because it
appears on the record that the money is paid, the party shall have
restitution without
Page 139 U. S. 220
a
scire facias, and there is a certainty of what was
lost; otherwise where it was levied but not paid; there must then
be a
scire facias suggesting the matter of fact,
viz., the sum levied,"
etc.
The same doctrine has been fully recognized by this Court in
Bank of the United States v.
Bank of Washington, 6 Pet. 8,
31 U. S. 17. In
that case, the Court, after observing that the party against whom
an erroneous judgment has been enforced does not lose his remedy
against the party to the judgment, said:
"On the reversal of the judgment, the law raises an obligation
in the party to the record who has received the benefit of the
erroneous judgment to make restitution to the other party for what
he has lost, and the mode of proceeding to effect this object must
be regulated according to circumstances. Sometimes it is done by a
writ of restitution, without a
scire facias, when the
record shows the money has been paid and there is a certainty as to
what has been lost. In other cases a
scire facias may be
necessary to ascertain what is to be restored, 2 Salk. 587, 588;
Tidd's Practice 936, 1137-1138, and no doubt circumstances may
exist where an action nay be sustained to recover back the
money."
We are of opinion that the proceeding to enforce the restitution
in the cases mentioned is under the control of the court, and that
all needed inquiry can be had to guide its judgment in a summary
proceeding upon motion of the parties, the only requisite being
that the opposite part shall be heard, so that in directing
restitution, no further wrong be committed. The restitution is not
made to depend at all upon the question whether or not the court
rendering the judgment reversed acted within or without its
jurisdiction.
In the case of
Morris'
Cotton, 8 Wall. 507, property on land was seized
under the acts of 1861 and 1862, passed for suppression of the
Rebellion, according to which the claimants were entitled to a
trial by jury. Such trial was not allowed, but a decree forfeiting
the property was passed by the court below. This was reversed by
this Court, which held that the district court had no jurisdiction
to proceed in the case in the manner in which it did, and, although
the proceeds of the
Page 139 U. S. 221
sale of the property had been distributed, it directed in its
decree of reversal that the court below should grant a new trial,
and issue a writ for restitution of the proceeds to the registry of
the court.
In
Ex Parte
Morris, 9 Wall. 607, the United States filed an
information in the District Court for the Middle District of
Alabama against certain bales of cotton which it was alleged were
liable to seizure and confiscation, and had come into the
possession of the petitioners. The court entered a personal decree
against them for the value of the cotton. On appeal, this Court
reversed the judgment and remanded the cause to the district court
with directions "to cause restitution to be made to the appellants
of whatever they have been compelled to pay under that decree."
The same doctrine is sustained in the several state courts of
the country, all recognizing the power of a court whose judgment is
set aside on its own motion or reversed by order of an appellate
tribunal to direct restitution, so far as practicable, of all
property and rights which have been lost by the erroneous judgment.
Hiler v. Hiler, 35 Ohio St. 646;
Chamberlain v.
Choles, 35 N.Y. 479.
Judgment affirmed.
BREWER. J. (BROWN, J., concurring):
I had supposed the law to be otherwise, and that if the circuit
court did not have jurisdiction by reason of a lack of proper
citizenship of the parties to render a judgment in favor of the
plaintiff against the defendant, it was equally without
jurisdiction thereafter in the same case, and without any change in
the citizenship, to render a judgment in favor of the defendant
against the plaintiff. But the result is so manifestly equitable I
am glad to know that I was mistaken, and that the law is as it is
now adjudged to be.