Where a judgment in a patent case was affirmed by this Court
with a blank in the record for costs, and the circuit court
afterwards taxed these costs at a sum less than two thousand
dollars and allowed a writ of error to this Court, this writ mast
be dismissed on motion.
The writ of error brings up only the proceedings subsequent to
the mandate, and there is no jurisdiction where the amount is less
than two thousand dollars, either under the general law or the
discretion allowed by the patent law. The latter only relates to
cases which involve the construction of the patent laws and the
claims and rights of patentees under them.
As a matter of practice, this Court decides that it is proper
for circuit courts to allow costs to be taxed,
nunc pro
tunc, after the receipt of the mandate from this Court.
Page 57 U. S. 102
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
A motion has been made to dismiss the writ of error in this case
for want of jurisdiction.
The case as it comes before us is this:
Many, the defendant in error, in the year 1848, recovered a
judgment in the Circuit Court for the District of Massachusetts
against the plaintiffs in error in an action for the infringement
of certain letters patent. The verdict and judgment was for less
than $2,000, but the writ of error to remove the case to this Court
was allowed under the patent law of 1836. From some oversight or
accident, the costs were not taxed in the circuit court before the
transcript of the record was transmitted to this Court. And the
judgment as it stood upon the transcript was for the damages
awarded by the jury, and costs of suit -- leaving a blank space
open for the insertion of the amount of the costs.
The judgment of the circuit court was affirmed at the December
term, 1851, and the usual mandate sent down directing
execution.
Upon the receipt of the mandate by the circuit court, the
defendant in error applied for leave to have the costs taxed and
the amount inserted in the blank left for that purpose in the
original record of the judgment. The motion was refused. And
thereupon the defendant in error, at December term, 1852, applied
to
Page 57 U. S. 103
this Court for a mandamus directing the court below to tax and
allow his costs in the original action, amounting, as he alleged,
to $1,811.59. But the court refused the motion upon the ground that
a mandamus could not lawfully be issued to a circuit court to guide
its judgment in the taxation of costs.
At a subsequent term of the circuit court, the defendant in
error renewed his motion for an order allowing the taxation of
these costs and their insertion in the original judgment, and the
court thereupon allowed the taxation of costs and directed the
amount above mentioned to be inserted in the original judgment. But
the court at the same time allowed a writ of error from their
decision, and ordered that this second writ of error should operate
as a supersedeas of the execution prayed for if sued out within the
time fixed by law. It is this writ of error that is now before the
court and which the defendant in error has moved to dismiss.
It has been settled by the decisions of this Court that after a
case has been brought here and decided and a mandate issued to the
court below, if a second writ of error is sued out, it brings up
for revision nothing but the proceedings subsequent to the mandate.
None of the questions which were before the court on the first writ
of error can be reheard or reexamined upon the second, and there is
nothing therefore now before the court but the taxation of costs.
20 U. S. 7 Wheat.
58;
37 U. S. 12 Pet.
488,
37 U. S.
492.
The sum taxed being less than $2,000, no writ of error will lie
under the act of 1789. This act gives no jurisdiction to this Court
over the judgment of a circuit court where the judgment is for less
than that sum.
Neither can the allowance of the writ by the circuit court give
jurisdiction where the only question is the amount of costs to be
taxed and the amount allowed is less than $2,000. The discretionary
power in this respect vested in the circuit courts by the Act of
July 4, 1836, sec. 17, is evidently confined to cases which involve
the construction of the patent laws and the claims and rights of
patentees under them. But the amount of costs which either party
shall be entitled to recover is not regulated by these laws. The
costs claimed are allowed or refused in controversies arising under
the patent acts, upon the same principles and by the same laws,
which govern the court in the taxation of costs in any other case
that may come before it. The same laws therefore must be applied to
them in relation to the writ of error, and must limit the
jurisdiction of this Court as in other cases.
The writ of error must therefore be dismissed for want of
jurisdiction. But as the question raised in this case may often
occur in the circuit courts, and it is important that the
Page 57 U. S. 104
practice should be uniform, it is proper to say that we consider
the decision of the circuit court allowing those costs to be taxed
after the receipt of the mandate from this Court to have been
correct and conformable to the general practice of the courts. The
costs are perhaps never in fact taxed until after the judgment is
rendered, and in many cases cannot be taxed until afterwards. And
where this is the case the amount ascertained is usually, under the
direction of the court, entered
nunc pro tunc as a part of
the original judgment. And this mode of proceeding is necessary for
the purposes of justice in order to afford the necessary time to
examine and decide upon the several items of costs to which the
successful party is lawfully entitled.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Massachusetts, and was argued by counsel. On consideration whereof,
it is now here ordered and adjudged by this Court that this cause
be and the same is hereby dismissed for the want of
jurisdiction.