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"
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case was brought up by a writ of error directed to the
judges of the Supreme Court of the Territory of Minnesota, The writ
being returnable to the last term of this Court. The
Page 62 U. S. 84
case was docketed and called for trial according to the rules of
the court, but upon inspection of the transcript it appeared that
there was no final judgment in the court below, and the case was
therefore dismissed for want of jurisdiction.
At a subsequent day in that term, a motion was made by the
plaintiff in error for a certiorari, upon affidavits filed,
suggesting that there had been a final judgment in the territorial
court, although it had not been correctly entered on the record.
But the court was of opinion that the affidavits were not
sufficient to support the motion, and refused the certiorari.
A motion has been made at the present term to annul the order of
dismissal made at the last term and to place the suit on the
calendar in the same order in which it would have stood if it had
not been dismissed, but continued over to the present term. And in
support of this motion a transcript from the territorial court has
again been presented, and this transcript contains a final judgment
of the supreme court of the territory. It is certified by the clerk
of the district court of the United States, to whose custody the
record and proceedings in this case have been transferred pursuant
to an act of Congress; and this transcript, among other things,
certifies that an amended order of the supreme court of the
territory reversing the judgment of the inferior territorial court
and ordering a judgment for defendants and an amended judgment of
the said court to the same effect was on file in his office,
transferred with the other proceedings in the case from the Supreme
territorial court.
But we think the motion to annul the judgment of the last term
and reinstate the case cannot be granted. The suit is a common law
action for a trespass on real property, and the judgment of the
court below can be brought here for revision by writ of error only.
That writ was issued by the plaintiff in error, returnable to the
last term of this Court, and it brought the transcript before us at
that term. It was judicially acted on and decided by this Court.
And when the term closed, that decision was final so far as
concerned the authority and jurisdiction of this Court under that
writ. The writ was
functus officio, and if the parties
desire to bring the record of
Page 62 U. S. 85
the case again before this Court, it must be done by another
writ of error. The former writ is not returnable to the present
term, and cannot therefore, according to the principles which
govern this common law writ, bring the record before us.
The case of
The Palmyra, 12
Wheat. 1, has been referred to, where a motion similar to the
present was granted by the court. And if that had been a case at
common law, we might have felt ourselves bound to follow it, as
establishing the law of this Court. But it was a case in admiralty,
where the power and jurisdiction of an appellate court is much
wider upon appeal than in a case at common law. For in an admiralty
case, you may in this Court amend the pleadings and take new
evidence, so as in effect to make it a different case from that
decided by the court below. And the court might well, therefore,
deal with the judgment and appeal of the inferior tribunal in the
same spirit. But the powers which an appellate court may lawfully
exercise in an admiralty proceeding are altogether inadmissible in
a common law suit.
The case in
28 U. S. 3 Pet. 431
relates to cases and questions of a different character from the
one before us. In that case, the judgment of the court at the
preceding term was amended. But the amendment was made to correct a
clerical error in this Court, and make the judgment conform to that
which the Court intended to pronounce. But this is not a motion to
amend, but to reverse and annul, the judgment of the last term,
which was passed upon full consideration, with the case regularly
and legally before us, as brought up by the writ of error.
We refer to these two cases because they have been relied on in
support of the motion. But, in the judgment of the Court, they
stand on very different principles, and the motion, for the reasons
above stated, must be
Overruled.
