An order allowing an appeal to this Court is, so long as the
appeal remains unperfected and the cause has not passed into the
jurisdiction of the appellate tribunal, subject to the general
power of a circuit court over its own judgments, decrees, and
orders during the existence of the term at which they are made.
Evans v. State Bank, 134 U. S. 330
distinguished from this case.
If a motion or petition for rehearing is made or presented in
season and entertained by the court, the time limited for a writ of
error or appeal does not begin to run until the motion is disposed
No appeal lies to this Court from a judgment of a circuit court
in execution of a mandate of the circuit court of appeals.
Motion to dismiss. This was a bill of complaint filed by James
O. Wood and others against the Aspen Mining & Smelting Company
and others in the Circuit Court of the United States for the
District of Colorado on April 14, 1888, which resulted, upon final
hearing on pleadings and evidence, in a decree October 20, 1890 --
one of the days of the May term, 1890, of the court -- dismissing
the bill at the costs of the complainants. The record, after
setting forth the decree, thus proceeds:
"And afterwards, and on, to-wit, the 25th day of October, A.D.
1890, came again the said complainants by their solicitor
aforesaid, and filed in said court, and in said cause, their motion
for rehearing. And the said motion is in words and figures as
follows; to-wit . . ."
And then follows a lengthy application for rehearing duly
endorsed as filed on that day. The November term, 1890, of the
circuit court, began on the first Tuesday, being the 4th day of
November, 1890, and adjourned on March 20, 1891. On April 26, 1891,
the complainants filed in the cause a "request for decision on
Page 150 U. S. 32
for rehearing," which recited that the motion had been submitted
"in open court at the beginning or very early in the last term."
The May term, 1891, opened on the first Tuesday, being the 5th day
of Mary, 1891, and on that day the record recites that "the motion
for a rehearing of this cause having heretofore come on to be
heard, and having been submitted upon briefs," the court, being
sufficiently advised, denied the motion. On the same day,
complainants prayed an appeal from the decree to the Supreme Court
of the United States, "which is allowed them, conditioned that they
file herein their bond conditioned according to law in said appeal
in the sum of three hundred dollars." June 24, 1891, counsel filed
a direction to the clerk to "make out full record in the
above-entitled suit for an appeal to the United States Circuit
Court of Appeals at St. Louis, Mo.," stating what was to be copied.
On July 2, 1891, one of the days of the May term, 1891, of the
court, complainants prayed an appeal to the United States Circuit
Court of Appeals for the Eighth Circuit, and an order was entered
vacating the order allowing an appeal to the Supreme Court of the
United States and allowing an appeal to the circuit court of
appeals conditioned upon the filing of bond in the sum of three
hundred dollars, and on the same day such bond was filed and
approved, together with an assignment of errors on appeal. Citation
was issued August 15, 1891, and duly served. From the records of
this Court it appears that the appeal was duly prosecuted to the
circuit court of appeals, and the decree reversed July 5, 1892, and
that thereupon the appellees petitioned for a rehearing, which was
denied. The opinions of that court will be found reported in 51 F.
338, 52 F. 250.
November 7, 1892, appellees on that appeal presented to this
Court their petition for a writ of certiorari under section six of
the Act of March 3, 1891, which was denied on November 28.
December 21, 1892, the complainants filed in the circuit court a
mandate from the United States Circuit Court of Appeals for the
Eighth Circuit reversing the decree of the circuit court with costs
and directing the court to take further
Page 150 U. S. 33
proceedings, and enter a decree in conformity with the opinion
of said circuit court of appeals.
Objections on behalf of defendants Wheeler and the Aspen Mining
Company were thereupon, on December 24, 1892, made to the
jurisdiction of the circuit court to proceed further with the
cause. January 13, 1893, these objections were overruled, and an
application on behalf of the defendant Wheeler, that the question
of jurisdiction be certified to the supreme court, was denied. The
opinion is reported in 53 F. 561. The circuit court then -- January
24, 1893 -- entered a decree in pursuance of and in conformity with
the directions contained in the opinion of the circuit court of
appeals, in compliance with the mandate of that court. On March 21,
1893, an appeal was granted to the mining company and Wheeler to
this Court by one of the Justices thereof, under the fifth section
of the Act of March 3, 1891. Bond to operate as a supersedeas was
given as directed, and approved, and citation was issued and
served. And in view of the allowance of the appeal the circuit
court, on April 3, 1893, certified the question of the jurisdiction
of the circuit court to make and enter the decree of January 24,
1893, or to proceed further in the case, to this Court for
decision. April 15, 1893, a short record was filed by appellees,
and a motion made to dismiss the appeal, the consideration of which
was objected to by counsel for appellants. The then number of the
case was 1,325, and is now 918. On April 19, a full record was made
by appellants, and the appeal docketed as No. 1,326, which is now
919. The motion to dismiss in No. 1,325 was postponed May 10, 1893,
to the next term of this Court, and counsel for appellees directed
to serve notice of the motion to dismiss, and to embrace therein
No. 1,326. This having been done, the motion to dismiss was
submitted on briefs, coupled with a motion to affirm. At the same
time, a motion was made on behalf of appellants to advance No. 919
under the thirty-second rule, and for oral argument.
Page 150 U. S. 34
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
By the thirty-second rule, as amended, 146 U.S. 707, cases
brought to this Court by writ of error or appeal under section five
of the Act of March 3, 1891, when the only question at issue is the
question of the jurisdiction of the court below, will be advanced
on motion, and taken on printed briefs or arguments in accordance
with the prescription of rule six in regard to motions to dismiss
writs of error or appeals; but, as this appeal will be disposed of
on the motion to dismiss, an order to advance is unnecessary, and
would indeed be superfluous under the circumstances in view of the
motion to affirm.
Nor do we find sufficient reason for the allowance of oral
argument in the character of the questions involved, nor in the
solicitude of appellants' counsel to repel in that form suggestions
in the briefs of counsel for appellees questioning the propriety of
the application for the allowance of the appeal, as we perceive no
ground calling for defense from imputation in that regard. It is
sufficient to dismiss the remarks referred to with the observation
that they are lacking in the courtesy and temperance of language
due from the members of the bar, and as such obnoxious to
animadversion. The condition of the record justified the
application, and the allowance of the appeal, although, upon
consideration, we are of opinion that it cannot be sustained.
The contention is that the appeal to the circuit court of
appeals was unauthorized and void because the allowance of the
appeal to this Court, May 6, 1891, vested in it exclusive
jurisdiction of the cause, which could not be divested by a
vacation of that allowance by the circuit court, and also because
the original final decree was entered October 20, 1890 -- one of
the days of the May term, 1890, of the circuit court -- while the
appeal to the circuit court of appeals was prayed, allowed, and
perfected on July 2, 1891, and at the May term,
Page 150 U. S. 35
1891, of the circuit court, contrary, as insisted, to the rules
and the statute.
1. The appeal to this Court was allowed on condition that bond
should be given as designated, but this was not done, nor any other
step in effectuation of the appeal taken, and the order of
allowance was vacated on a subsequent day of the same term.
The general power of the circuit court over its own judgments,
decrees, and orders during the existence of the term at which they
are made is undeniable, and an order allowing an appeal is subject
to that power so long as the appeal remains unperfected, and the
cause has not passed into the jurisdiction of the appellate
tribunal. Ex Parte
15 Wall. 384; Goddard v. Ordway,
101 U. S. 745
Draper v. Davis, 102 U. S. 370
Keyser v. Farr, 105 U. S. 265
There is nothing to the contrary in Evans v. State
Bank, 134 U. S. 330
which it was held that our jurisdiction may be maintained when the
record on appeal has been filed here during the term to which the
appeal was returnable, even though bond had not been approved and
citation signed. No such state of case is presented, nor was the
question of the power of the court below to set aside its order of
allowance involved in that case or in others in which like rulings
have been made.
Equally unavailing is the reference to the provision of the
joint resolution of March 3, 1891, "to provide for the organization
of the circuit courts of appeals," 26 Stat. 1115, that nothing in
the Act of March 3, 1891, 26 Stat. 826, c. 517, should be held or
construed to impair the jurisdiction of the supreme court in any
case then pending before it, or in respect of any case wherein the
appeal had been taken to that court before the first day of July,
1891, for this merely preserved the jurisdiction as stated, and did
not operate to give jurisdiction as to appeals not perfected, which
would not otherwise have existed.
In our judgment, the circuit court had power to vacate the
allowance of the 5th of May during the term, and allow the appeal
of July 2, and this even if after March 3 and prior to
Page 150 U. S. 36
July 1, 1891, an appeal might have been taken either to this
Court or the circuit court of appeals, a point suggested, but upon
which it is unnecessary to pass.
2. The decree dismissing complainants' bill was entered on
October 20, 1890, but an application for a rehearing was made
shortly, thereafter, and during the same term, but not disposed of
until May 5, 1891.
The rule is that if a motion or a petition for rehearing is made
or presented in season, and entertained by the court, the time
limited for a writ of error or appeal does not begin to run until
the motion or petition is disposed of. Until then, the judgment or
decree does not take final effect for the purposes of the writ of
error or appeal. Brockett v.
2 How. 238, 43 U. S. 240
Texas & Pacific Railway v. Murphy, 111 U.
; Memphis v. Brown, 94 U. S.
If this case falls within that category, then the six months
within which the appeal had to be taken under section 11 of the
Judiciary Act of March 3, 1891, did not commence to run until May
5, 1891, and the appeal was in time.
It is true that Equity Rule 88 provides that
"no rehearing shall be granted after the term at which the final
decree of the court shall have been entered and recorded, if an
appeal lies to the supreme court,"
but if this petition for rehearing was filed in season, and
entertained by the court, then the decree, although entered in
form, did not discharge the parties from their attendance in the
cause, and they were bound to follow the petition thus pending to
the next term. The suit was thereby prolonged until the application
was disposed of in the regular course of proceeding. This is
expressly so ruled in Goddard v. Ordway, supra.
In Giant Powder Co. v. California Vigorit Powder Co.,
F. 197, it was said by MR. JUSTICE FIELD that Equity Rule 88
applies only where no petition is presented during the term, and
the numerous cases in which it has been held that the time limited
for an appeal does not begin to run until a petition for a
rehearing, properly presented, has been disposed of, sustain that
view. The decree does not, in legal effect, remain final while the
petition is pending, and
Page 150 U. S. 37
the prescription of Rule 88 must be construed to mean that a
rehearing cannot be granted after the lapse of the term unless
application is made therefor during the term, and, being
entertained, the decree is thereby prevented from passing beyond
the control of the court. The entertaining of the petition keeps
the jurisdiction alive, and the granting of the rehearing may be
made absolute or denied thereafter, as the court may determine.
But it is said this cannot be the result, under either statute
or rule, of the mere filing of a motion or petition for rehearing,
and that it does not affirmatively appear in this case that the
motion or petition was entertained by the court. But we should be
inclined to hold, if a decision in that regard were called for,
that since the application was passed upon as having been duly
made, the presumption must be indulged that it was entertained by
the court in the first instance, and during the term at which the
decree was pronounced.
3. Apart from these considerations, however, this is an appeal
from a decree entered by the circuit court in conformity with the
mandate from the Circuit Court of Appeals for the Eighth Circuit.
That court took jurisdiction, passed upon the case, and determined
by its judgment that the appeal had been properly taken. If error
was committed in so doing, it was not for the circuit court to pass
upon that question. The circuit court could not do otherwise than
carry out the mandate from the court of appeals, and could not
refuse to do so on the ground of want of jurisdiction, in itself,
or in the appellate court. Skillern's Executors v. May's
6 Cranch 267; In re Washington &
Georgetown Railroad, 140 U. S. 91
Gaines v. Rugg, 148 U. S. 228
148 U. S. 241
And no rule is better settled than that an appeal from a decree
entered by the court below in accordance with the mandate of the
appellate court cannot be maintained. Stewart v. Salmon,
97 U. S. 361
Humphrey v. Baker, 103 U. S. 736
Texas & Pacific Railway v. Anderson, 149 U.
. If the circuit court of appeals erred, or if for
any reason its judgment could be held void, the appropriate remedy
lay in a certiorari from this Court to that court. American
Construction Co. v. Jacksonville &c.
Page 150 U. S. 38
Railway, 148 U. S. 372
we judicially know, from our own records, Butler v. Eaton,
141 U. S. 240
141 U. S. 243
that the present appellants applied to this Court for that writ,
and that the application was denied.