Apex Transp. Co. v. Garbade
| Citation | 32 Or. 582,54 P. 882 |
| Parties | APEX TRANSPORTATION CO. v. GARBADE. |
| Decision Date | 31 October 1898 |
| Court | Supreme Court of Oregon |
Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr., Judge.
Action by the Apex Transportation Company against T.A. Garbade. From a judgment for defendant, plaintiff appeals. Dismissed.
Frank Schlagel, for the motion.
R.R. Duniway, opposed.
The motion to dismiss this appeal must be allowed. It is attempted to be taken from a judgment of the court below directing a nonsuit in obedience to a mandate of this court regularly issued in a cause over which it had jurisdiction. Transportation Co. v. Garbade (Or.) 52 P. 573. Such a judgment is not appealable. It is only from the judgments of the circuit courts that an appeal to this court will lie, and one entered in obedience to a mandate of this court is not such a judgment, but is practically a judgment of the appellate court. Upon the receipt of the mandate the trial court has no alternative but to enter the judgment as directed (Hill's Ann.Laws Or. § 546), and an appeal therefrom would be, in effect, an appeal to this court from one of its own judgments. If, for any reason, the mandate in this particular instance ought to have directed a new trial instead of a nonsuit, the matter should have been called to the attention of the appellate court by some appropriate proceeding, and cannot be raised by an appeal from a judgment entered in obedience to its mandate. Counsel also claimed that the judgment of the appellate court to enforce which the mandate was issued in some way violates the constitution of the United States, but, if this is true, it in no way affects the question as to whether an appeal can be taken from a judgment of the trial court entered in obedience to such mandate. Motion allowed, and appeal dismissed.
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