1. An application to an inferior court to supply a lost record,
being, matter addressed to its discretion, is not a subject for
writ of error.
2. If after a lost record of a case where judgment below has
been affirmed is supplied in the inferior court, final process
issue in accordance with the mandate sent to such court on the
affirmance, the action of the court in granting such process will
not be reviewed here.
The judgment which is above reported as having been affirmed was
so affirmed at the December Term, 1867. A mandate accordingly
issued to the court below reciting the judgment of this Court and
directing that
"such execution and proceedings be had in said cause, as
according to right and justice and the laws of the United States
ought to be had, the said writ of error notwithstanding."
This mandate was presented to the Circuit Court for the Eastern
District of Texas and ordered to be recorded, and Porter, who was
now the surviving plaintiff, with the executors of his deceased
coplaintiff Burnley, applied to the court for writs of possession.
But as the records of the court below had
Page 78 U. S. 673
been destroyed by fire during the late war, affidavit was made
of that fact, and a carefully certified copy of the transcript in
this Court was presented, with a motion to have it received in lieu
of the original. The plaintiffs also presented a sworn copy of the
original petition, and asked to have it established as the petition
in the cause. The defendant objected to the allowance of this
motion, and assigned several grounds of objection of a technical
character. But the circuit court ordered that the motion be
sustained, and that a writ of possession issue. The defendants then
gave notice that they would prosecute "a writ of error therefrom"
--
i.e. from the order -- and the court fixed the amount
of the bond at $7,000, and "allowed thirty days for the filing" of
the same. This order is entered December 18, 1869.
No bond having been filed or copy of writ of error lodged in the
clerk's office up to January 1, 1870, the plaintiffs directed the
issue of a writ of possession, which was issued, whereupon the
defendant, Cook, applied by petition to the district judge, in
chambers, at Austin, July 23, 1870, for a writ of supersedeas, and
upon his petition an order was made for such writ enjoining the
marshal from executing the writ of possession, a copy of which
order was served on the attorneys of plaintiffs. The allegation in
Cook's petition, upon which this supersedeas was granted, was that
he had sued out a writ of error and executed a bond, which was
approved "in due and usual form in such cases," so that the order
of the district judge must be understood as affirming this
position.
The writ of error, and a copy of the bond and citation, were
filed or "lodged" with the clerk of the circuit court on January 7,
1870, or twenty days after the judgment was rendered, but appeared
to have been allowed and approved by the district judge on the 28th
of December, 1869.
Mr. W. G. Hale, for himself, and Mr. W. B. Ballinger, now
moved:
I. To dismiss the writ of error in said cause for the following
causes, apparent in said record:
Page 78 U. S. 674
1st. The said writ of error is not prosecuted from any final
judgment in this cause.
2d. That it is brought to reverse an order enforcing a mandate
of this Court, and not to reverse any judgment, order, or
proceeding of the circuit court, from which a writ of error can
lawfully be prosecuted to this Court.
II. In case said writ of error be not dismissed, then that the
court set aside and discharge the supersedeas to the writ of
possession issued from said circuit court, or direct said circuit
court so to do.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Final process is never issued by this Court in the exercise of
its appellate jurisdiction except in cases where a state has once
refused to execute the mandate of the court. Instead of that, the
mandate is transmitted to the subordinate court, and where the
directions contained in the mandate are precise and unambiguous, it
is the duty of the subordinate court to carry it into execution,
and not to look elsewhere to change its meaning. [
Footnote 1]
Two causes are assigned for the motion to dismiss the present
writ, which is a second writ of error in the case sued out by the
same party:
(1) Because the writ of error is not prosecuted from any final
judgment in the cause.
(2) Because the writ is sued out to reverse an order of the
circuit court carrying into effect the mandate of this Court.
Where the subordinate court commits any substantial error in
executing the mandate of the Supreme Court, it is well settled law
that a second writ of error or appeal, as the case may be, will lie
to correct the error, and to cause the mandate to be executed
according to its tenor and effect. [
Footnote 2]
Ejectment was brought on the 13th of June, 1859, by the present
defendants, or one of them and the testator of the
Page 78 U. S. 675
other two, in the district court of the United States for that
district, to recover the possession of certain lands described in
the petition filed in that court on that day. Process was issued,
and the same having been served, the defendants appeared and made
defense, and the parties went to trial. Under the rulings of the
court, the verdict and judgment were for the plaintiffs, and the
defendants sued out a writ of error and removed the cause into this
Court.
Prior to the institution of that suit, Texas was divided into
two judicial districts, called the Eastern and Western, and the
acts of Congress creating those districts provided to the effect
that the district judge, whether sitting in the one or the other,
might exercise circuit court powers. [
Footnote 3]
Subsequent to the removal of the cause into this Court, Texas
was included in the sixth circuit, and all acts which vested in the
District Court of the United States for the District of Texas the
power and jurisdiction of circuit courts was repealed, and the
third section of the act provided that all actions, suits,
prosecutions, causes, pleas, process, and other proceedings
relative to any cause, civil or criminal, . . . shall be and are
declared to be respectively transferred, returnable, and continued
to the several circuit courts constituted by that act. [
Footnote 4]
When reached in order, the cause as removed here by the first
writ of error was heard, and this Court affirmed the judgment
rendered by the district court before the acts of Congress giving
that court circuit court powers were repealed. Judgment was entered
in that court on the 30th of June, 1859, before the state was
included in the Sixth Circuit, but the act including the state in
the Sixth Circuit passed before the judgment was affirmed in this
Court. Consequently the mandate of this Court was transmitted to
the circuit court of that district as required by the third section
of the act.
Reference to the present record will show that the mandate as
transmitted was duly received and recorded, and of
Page 78 U. S. 676
course the judgment was duly affirmed, but objection is taken by
the defendants in the judgment to the subsequent action of the
court.
Suggestion was made by the plaintiffs in the suit that the
original petition was lost, and they moved for leave to file a copy
of the same, and for a writ of possession to carry the judgment as
affirmed into execution.
Objection was made by the defendants to the motion, and the
parties having been heard, the court took the matter under
advisement, but finally passed an order that the copy of the
original petition filed by the plaintiffs be adjudged to be the
petition therein, and that the writ of possession, as prayed for,
do issue. Such was the decision of the court, and the same was
subsequently entered as a decree, and the defendants sued out a
writ of error, and removed the cause into this Court to reverse
that decree. Sued out as the writ of error was to reverse that
decree, the present defendants have filed a motion to dismiss it
for the reasons assigned, and the Court is of the opinion that the
motion must be granted.
Nothing can be more certain in legal decision than the
proposition that an application to supply a lost writ, declaration,
or other pleading, if accompanied by proof of loss, is in general
addressed to the discretion of the court, and it is well settled
law that decisions which rest in the discretion of a court of
original jurisdiction, cannot be reexamined in an appellate court
upon a writ of error. [
Footnote
5]
Secondary evidence of a lost record, as well as of any other
instrument, is admissible after proof of the loss; but in this
case, the plaintiffs filed a copy from the record of the case
transmitted to this Court, and the circuit court was quite right in
allowing the loss of the petition to be supplied. [
Footnote 6]
Certainly it was not error to grant a writ of possession,
Page 78 U. S. 677
as that was but executing the express directions of the mandate,
and surely it will not be argued that it was error to order to be
done what this Court had commanded should be done by its
mandate.
Suppose all the foregoing conclusions are correct, still it is
contended that the writ of error cannot be dismissed because it is
a writ of error sued out under the twentysecond section of the
Judiciary Act, which, it is said, brings up the whole record.
Undoubtedly it is true that the first writ of error was sued out
under that section, and that such a writ does bring up the whole
record, and it is well settled that it is no ground to dismiss the
writ of error because there is no bill of exceptions, agreed
statement of facts, or material demurrer in the record presenting
any question of law for the decision of the appellate court, as the
absence of every such question is good cause for affirming the
judgment, but it is not a good ground for dismissing the writ of
error. [
Footnote 7]
Grant that, still the second writ of error, though issued under
the twentysecond section of the Judiciary Act, does not bring up
the whole record for reexamination. On the contrary, it is equally
well settled that the second writ of error brings up nothing for
revision except the proceedings subsequent to the mandate, and it
follows that if those proceedings are merely such as the mandate
commanded, and were necessary to the execution of the mandate, the
writ of error will be dismissed, as any other rule would enable the
losing party to delay the execution of the mandate indefinitely,
which cannot be admitted.
Motion to dismiss granted.
[
Footnote 1]
Skillern v.
May, 6 Cranch 267;
Ex Parte
Story, 12 Pet. 339;
West v.
Brashear, 14 Pet. 51; Curtis's Commentaries §
405.
[
Footnote 2]
McMicken v.
Perin, 20 How. 135;
Roberts v.
Cooper, 20 How. 481.
[
Footnote 3]
9 Stat. at Large 1; 11
id. 164.
[
Footnote 4]
12 Stat. at Large 576.
[
Footnote 5]
Liter v.
Green, 2 Wheat. 306;
Silsby v.
Foote, 14 How. 218;
Morsell v.
Hall, 13 How. 212;
United
States v. Buford, 3 Pet. 12;
Jenkins v.
Banning, 23 How. 455;
Mandeville
v. Wilson, 5 Cranch 15;
Spencer v.
Lapsley, 20 How. 264.
[
Footnote 6]
1 Greenleaf on Evidence, 12th ed. § 509.
[
Footnote 7]
Taylor v.
Morton, 2 Black 484;
Minor v.
Tillotson, 1 How. 287;
Suydam
v. Williamson, 20 How. 441.
