Error does not lie to a refusal of the circuit court to award a
writ of restitution in ejectment.
Forsyth had brought ejectment against Gregg in the Circuit Court
for Illinois, and obtained judgment for the land sued for. On writ
of error taken by Gregg, this Court reversed that judgment and
remitted the case with directions to issue a
venire de
novo. Between the time, however, that the circuit court gave
its judgment of recovery and that when this Court gave
its
of reversal, Forsyth had been put in possession of the premises by
a
habere facias, and had collected, moreover, the costs of
the suit.
As soon as the mandate of this Court reversing the judgment was
sent down to the court below, but before it had been filed or a
rule entered in pursuance of its directions, Gregg moved the court
for a writ of restitution. This motion the Court refused to grant.
Whereupon, a writ of error -- the present writ -- was brought.
MR. JUSTICE NELSON delivered the opinion of the Court.
Upon the facts of this case, it will be seen that at the time
the motion was made in the court below, the cause was not then
pending in the Court. Although the mandate had been
Page 69 U. S. 57
sent down to the circuit from this Court it had not been filed
there, nor had the rule been entered in pursuance of its directions
reversing the judgment. The court had not, therefore, obtained
possession of the cause, and this was doubtless the reason for
refusing the motion for restitution. The plaintiffs in error were
entitled to restitution both of the premises and costs on the
reversal of the judgment, and the modern practice is to apply to
the court on the coming down of the mandate from the appellate
tribunal and the entry of the judgment of reversal for a writ of
restitution, setting forth the facts entitling the party to the
remedy and giving notice of the motion to the adverse party. The
earlier and more formal remedy was by
scire facias.
[
Footnote 1]
It seems that the writ of restitution may be granted though a
new venire has been directed. In
Smith's Lessee v. Trabue's
Heirs, [
Footnote 2] this
Court held that a writ of error would not lie to an order of the
circuit court awarding a writ of restitution on motion, and
dismissed the case for want of jurisdiction. The writ in the
present case must be dismissed for the same reason. The order is
not considered a final judgment within the meaning of the Judiciary
Act.
Dismissal accordingly.
[
Footnote 1]
Rex v. Leaven, 2 Salkeld 558;
Sympson v.
Juxon, Cro.Jac. 699; 2 Sellon's Prac. 387; 2 Tidd's
do. 1033, 1188;
Safford v. Slevens, 2 Wendell
164;
Close v. Stuart, 4
id. 95;
Smith's
Lessee v. Trabue's Heirs, 9 Pet. 4;
Jackson v.
Hasbrouk, 5 Johnson 366;
Cassel v. Duncan, 2 Sergeant
& Rawle 57;
Russel v. Gray, 6
id. 208;
Ranck v. Backer, 13
id. 41.
[
Footnote 2]
34 U. S. 9 Pet.
4.