$ 2699. Rule as to abatement of actions in supreme court.

There is a material distinction between the death of parties before judgment and after judgment, and while a writ of error is depending. In the former case all personal actions by the common law abate; and it required the aid of some statute, like that of the thirty-first section of the judiciary act of 1789, c. 20 (1 Stats. at Large, 90), to enable the action to be prosecuted by or against the personal representative of the deceased, when the cause of action survived. In real actions the like principle prevails for a still stronger reason, for, by the death of either party, the right descends to the heir and a new cause of action springs up; and the plea is not, therefore, in the same condition as it was in the life-time of the party. But, in cases of writs of error upon judgments already rendered, a different rule prevails. In personal actions, if the plaintiff in error dies before assignment of error, it is said that by the course of proceedings at common law, the writ abates; but if after assignment of errors, it is otherwise. In this latter case the defendant may join in error and proceed to get the judgment affirmed, if not erroneous, and he may then revive it against the representatives of the plaintiff. But in no case does a writ of error in personal actions abate by the death of the defendant in error, whether it happen before or after errors assigned. If it happen before, and the plaintiff will not assign errors, the representatives of the defendant may have a scire facias quare executio non, in order to compel him; if it happen after, they must proceed as if the defendants were living, till judgment be affirmed, and then revive by scire facias. And the plaintiff, in order to compel the representatives of the defendant in error to join in error, may sue out a scire facias ad audiendum errores, either generally, or naming them. Such is the doctrine of approved authorities. 2 Tidd's Pr., c. 43; Error, p. 1096. It is clear, therefore, that at common law, in these cases, a writ of error does not necessarily abate; and that the personal representatives may not only be admitted voluntarily to become parties, but a scire facias may issue to require them to become parties. And such has been the practice hitherto adopted in this court in all personal actions, whether there has been an assignment of errors or not; for a specific assignment of errors has never been insisted on here as a preliminary to the argument or decision of the cause.

2700. A real action does not abate on the death of a party pending a writ of error.

In respect to real actions, this is the first time the question has presented itself upon a writ of error, where the death of either party has occurred pendente lite. There is no doubt that the heir or privy in estate, who is injured by an erroneous judgment, may prosecute a writ of error to reverse it. And there seems no good reason why, in case of the death of his ancestor, pending proceedings, he may not be admitted to become a party, or be cited to become a party, to pursue or defend the writ, in the same manner as in personal actions. The death of neither party produces any change in the condition of the cause, or in the rights of the parties. It would seem reasonable, therefore, that the suit should proceed, and not be dismissed or abated. In the absence of all authority which binds the court to a different course, we are disposed to adopt this doctrine, and shall promulgate a general rule on the subject.

Rule accordingly.

§ 2701. In general.- Where the appellant dies pending an appeal to the supreme court the action will be abated if his representatives do not appear for two whole terms after his death has been suggested. Barribeau v. Brant, 17 How., 46. If the appellant dies pending

an appeal to the supreme court only his representatives, and not an assignee, can be permitted to appear in his stead. Ibid. Where one of two or more plaintiffs in error dies the action survives, and the heirs and representatives of the deceased need not be brought in. M'Kinney v. Carroll,* 12 Pet., 66.

§ 2702. Where a bill in equity was dismissed and the complainant's executrix procured leave to join as a party and prosecute an appeal, and on appeal to the supreme court procured the reversal of the decree, and the supreme court, after finally deciding the case on its merits, remanded the suit with directions to proceed, the defendant was rightly refused permission to show that the suit abated before the appeal was taken, by reason of the death of the plaintiff before the decree, and that the executrix ought not to have been allowed to prosecute the appeal. Ex parte Story, 12 Pet., 343.

§ 2703. If one of two joint defendants in error dies the court will, on suggestion of his death after reversal, enter it upon the records, and enter judgment against the survivor alone. It seems that if one dies during the term judgment will be entered against both, as of a day prior to his death, nunc pro tune; and if he die before the term, if the action survives, judgment may be rendered against the survivor alone. McNutt v. Bland, 2 How., 28.

XX. SECOND APPEAL OR WRIT OF ERROR.

SUMMARY - Same question not examined on second appeal, § 2704.- Construction of mandate, §§ 2705, 2708.- No jurisdiction on first appeal, § 2706.— Decree misconstrued, § 2707.— From order made pursuant to decree of affirmance, § 2709.— Allowance to a receiver, § 2710.- Motion to affirm and to dismiss, § 2711.- Allowance of costs, § 2712.

2704. Whatever has been decided upon one appeal cannot be re-examined in a subsequent appeal of the same suit. Supervisors v. Kennicott, § 2713, 2714. See § 2732.

$2705. Where an equity case was reversed and remanded," with directions to award a new trial," and the mandate "commanded that such execution and further proceedings be had in conformity to the opinion and decree, as according to right, etc., ought to be had," it was held that the opinion might be referred to to see what was meant by the term "new trial," and that on looking at the opinion it did not appear that the case was to be opened for further hearing on the issues presented and decided in the supreme court. Ibid.

$2706. Where an appeal is taken from a decree entered in accordance with the mandate, the supreme court will not examine matters settled by the original decree, although it had no jurisdiction on the first appeal because the decree appealed from was not final. Washington Bridge Co. v. Stewart, § 2715.

§ 2707. Where the decree of the supreme court has been misunderstood or misconstrued by the lower court, to the injury of either party, an appeal will lie to correct the error. A mandamus might lie, but an appeal is equally convenient and suitable. Perkins v. Fourniquet, $§ 2716, 2717. See § 2726.

§ 2708. Where a judgment of a lower court of a state was affirmed on writ of error in the appellate court, and the case was brought to the supreme court, and the judgment reversed, and a mandate sent down, directing the state court to conform its judgment to the opinion rendered, and the state court thereupon dismissed its writ of error to the lower court, for want of power to review, held, that the mandate was not disobeyed; that the state court had power to decide upon its own jurisdiction; that its judgment stood reversed by the reversal in the supreme court, and it was proper to dismiss the writ. Davis v. Packard, § 2718.

§ 2709. A second appeal will not lie from an order requiring a party to execute a conveyance pursuant to a decree of affirmance in the supreme court; second appeals must be founded on matters not concluded by the original decree. McMicken v. Perin, §§ 2719, 2720.

§ 2710. After a decision in the supreme court, making an allowance to a receiver for his services in a certain suit, he made application to the state court and had the suit reinstated, and obtained an allowance of a gross sum, exceeding the amount allowed by the supreme court. He then applied to the circuit court to have the allowance paid out of a fund in that court, which was refused, and he appealed. Held, that the appeal was proper, as the matter was subsequent to the mandate; also, that the order of the circuit court should be affirmed, as the receiver's compensation had been fixed by the supreme court. Hinckley v. Morton, S$ 2721, 2722.

§ 2711. A motion to affirm may be united with a motion to dismiss made on the ground that the appeal is taken from a decree entered on the mandate on a previous appeal. Ibid. § 2712. An order allowing the taxation of costs, and their insertion in the original judgment, will not support a second writ of error, this being the only question arising subsequent to the mandate. Sizer v. Many, §§ 2723-2725.

[NOTES.-See §§ 2726-2742.]

SUPERVISORS v. KENNICOTT.

(4 Otto, 498, 499. 1876.)

APPEAL from U. S. Circuit Court, Southern District of Illinois.

§ 2713. Whatever has been decided on one appeal cannot be re-examined on a second. (a)

Opinion by WAITE, C. J.

When this case was here on a former appeal we decided that the mortgage in controversy was valid in favor of bona fide holders of the bonds it was given to secure, and that the complainants were entitled to a decree for the amount of the bonds held by them. Kennicott v. Supervisors, 16 Wall., 468, 471. These questions are, therefore, no longer open; for it is settled in this court, that whatever has been decided here upon one appeal cannot be re-examined in a subsequent appeal of the same suit. Such subsequent appeal brings up for consideration only the proceedings of the circuit court after the mandate of this court. Himely v. Rose, 5 Cranch, 314; Martin v. Hunter's Lessee, 1 Wheat., 355; Browder v. McArthur, 12 id., 53; Sibbald v. United States, 12 Pet., 492; Corning v. Troy Iron and Nail Co., 15 How., 466; Sizer v. Many, 16 id., 103; Roberts v. Cooper, 20 id., 481; Tyler v. Maguire, 17 Wall., 283.

82714. Technically, there can be no new trial in a suit in equity remanded to the lower court.

It is true that, after reversing the decree of the circuit court upon the former appeal, it was further ordered that the cause be remanded "with directions to award a new trial;" but the mandate as sent down "commanded that such execution and further proceedings be had in conformity to the opinion and decree of this court, as according to right, etc., ought to be had." Technically, there can be no "new trial" in a suit in equity; and as our mandates are to be interpreted according to the subject-matter of the proceeding here, and, if possible, so as not to cause injustice (Story v. Livingston, 13 Pet., 359), it is proper to inquire what must have been intended by the use of that term in the decree, since it cannot have its ordinary meaning. For that purpose, we held, in West v. Brashear, 14 Pet., 51, that resort might be had to the opinion delivered at the time of the decree. Availing ourselves of this rule, it is easy to see that there could have been no intention to open the case for further hearing upon the issues presented and decided here. There is not an expression of any kind in the opinion indicating any such determination. On the contrary, it is distinctly declared that the mortgage was valid and that the complainants were entitled to their judgment. Under these circumstances, it is apparent that the words "new trial" were used to convey the idea of such further action as should be found necessary to carry into effect what had been already decided. No error has been assigned upon the proceedings in the circuit court under the mandate construed in this way, and the decree of the circuit court is, therefore, affirmed.

WASHINGTON BRIDGE CO. v. STEWART.

(3 Howard, 413-426. 1844.)

APPEAL from the Circuit Court of the District of Columbia.
Opinion by MR. JUSTICE WAYNE.

STATEMENT OF FACTS.-This cause is now before us upon an appeal from a decree of the circuit court, made by it upon an auditor's report, in conformity

(a) A second writ of error or appeal brings up for revision nothing but the proceedings subsequent to the mandate. Roberts v. Cooper,* 20 How., 467; Corning v. Troy iron and Nail Factory, 15 How., 451. And a rehearing of matters decided on the original appeal will be refused. Browder v. McArthur,* 7 Wheat., 53.

with the mandate issued by this court, when the cause was before it upon a former occasion. The appellants did not except to the auditor's report in the court below. When the cause was tried upon the first appeal the decree of the circuit court was affirmed by a divided court. We are now asked by the counsel for the appellants to permit him to re-examine the decree of the circuit court, upon its merits, affirmed as it was by the supreme court, upon the ground that the affirmance was made when this court had not jurisdiction of the case; the first appeal having been taken upon what has since been discovered to have been an interlocutory and not a final decree.

§ 2715. On a second appeal the supreme court will not examine matters decided on the first appeal, although it had no jurisdiction on the first appeal.

The supreme court certainly has only appellate jurisdiction where the judg ment or decree of the inferior court is final. But it does not follow, when it renders a decree upon an interlocutory and not a final decree, that it can, or ought, on an appeal from a decree in the same cause, which is final, examine into its jurisdiction upon the former occasion. The cause is not brought here in such a case for any such purpose. It was an exception of which advantage might have been taken by motion on the first appeal. The appeal would then have been dismissed for the want of jurisdiction, and the cause would have been sent back to the circuit court for further proceedings. But the exception not having been then made of the alleged want of jurisdiction, the cause was argued upon its merits, and the decree appealed from was affirmed by this court. Its having been affirmed by a divided court can make no difference as to the conclusiveness of the affirmance upon the rights of the parties. It is settled that, when this court is equally divided upon a writ of error or appeal, the judgment of the court below stands affirmed. Etting v. Bank of the United States, 11 Wheat., 59; the case of The Antelope, 10 Wheat., 66. Having passed upon the merits of the decree, this court has now nothing before it but the proceedings subsequent to its mandate. So this court said in Himely and Rose, and in the case of The Santa Maria, 5 Cranch, 314; 10 Wheat., 431. Its decree became a matter of record in the highest court in which the cause could be finally tried. To permit afterwards, upon an appeal from proceedings upon its mandate, a suggestion of the want of jurisdiction in this court, upon the first appeal, as a sufficient cause for re-examining the judgment then given, would certainly be a novelty in the practice of a court of equity. The want of jurisdiction is a matter of abatement, and that is not capable of being shown for error to indorse a decree upon a bill of review. Shall the appellant be allowed to do more now than would be permitted on a bill of review if this court had the power to grant him such a remedy? If he was, we should then have a mode for the review of the decrees of this court, which have become matters of record, which could not be allowed as an assignment of error for a bill of review in any of those courts of the United States in which that proceeding is the ordinary and appropriate remedy.

The application has been treated in this way to show how much at variance it is with the established practice of courts of equity. It might, however, have been dismissed upon the authority of a case in this court, directly in point (Skillern's Executors v. May's Executors, 6 Cr., 267), and upon the footing that there is no mode pointed out by law in which an erroneous judgment by this court can be reviewed in this or any other court. In Skillern's case the question certified by the court below to this court for its decision was whether the

upon

cause could be dismissed from the circuit court, for want of jurisdiction, after the cause had been removed to the supreme court, and this court had acted and remanded the cause to the circuit court for further proceedings. This court said: "It appearing that the merits of the cause had been finally decided in this court, and that its mandate required only the execution of its decree, it is the opinion of this court that the circuit court is bound to carry that decree into execution, although the jurisdiction of that court is not alleged in the pleadings." The jurisdiction of this court in that case was as defective as it is said to have been in this. When that cause was before this court, though the judg ment of the court below on it would have been reversed, upon motion, for the want of jurisdiction on the face of the record, the defect having escaped the notice of the court and of counsel, and the court having acted upon its merits, it determined that its decree should be executed. The reason for its judgment no doubt was that the motion to dismiss the case in the court below for the want of jurisdiction, after it had been before the supreme court by writ of error, and had been acted upon, would have been equivalent, had it been allowed, to a decision that the judgment of this court might be reviewed when the law points out no mode in which that can be done, either by this or any other court. The want of power in this court to review its judgments or decrees has been so frequently determined by it that it is not now an open question. Such is the result of what the court said in Himely and Rose, 5 Cr., 314. The court says, in Martin v. Hunter's Lessee, 1 Wheat., 304, in reply to the allegation that its judgment had been rendered when it had not jurisdiction: "To this argument several answers may be given. In the first place, it is not admitted that upon this writ of error the former record is before us. In the next place, in ordinary cases, a second writ of error has never been supposed to draw in question the propriety of the first judgment, and it is difficult to perceive how such a proceeding could be sustained on principle. A final judgment of this court is supposed to be conclusive upon the rights it decides, and no statute has provided any process by which this court can reverse its judgments. In several cases formerly adjudged in this court, the same point was argued and expressly overruled. It was solemnly held that a final judgment of this court was conclusive upon the parties, and could not be re-examined." In Browder v. McArthur, 7 Wheat., 58, counsel applied for a rehearing; the court refused it, saying a subsequent appeal brought up only the proceedings subsequent to the mandate, and did not authorize an inquiry into the merits of the original degree. The same is said with equal positiveness in the case of The Santa Maria, 10 Wheat., 442. To these cases we add an extract from the opinion of the court given by the late Mr. Justice Baldwin, in Ex parte Sibbald, 12 Pet., 492. That case called for the most careful consideration of the court. "Before we proceed to consider the matter presented by these petitions, we think it proper to state our settled opinion of the course which is prescribed by the law for this court to take, after its final action upon a case, brought within its appellate jurisdiction, as well as that which the court, whose final decree or judgment has been thus verified, ought to take. Appellate power is exercised over the proceedings of inferior courts, not on those of the appellate court. The supreme court has no power to review its decisions, whether in a case at law or in equity. A final decree in chancery is as conclusive as a judgment at law. 1 Wheat., 355; 6 Wheat., 113, 116. Both are conclusive of the rights of the parties thereby adjudicated."