George and Henry Sizer, Plaintiffs In Error v. William Many

CourtUnited States Supreme Court
Citation14 L.Ed. 861,57 U.S. 98,16 How. 98
Decision Date01 December 1853

57 U.S. 98
16 How. 98
14 L.Ed. 861
December Term, 1853

THIS case was brought up by writ of error, from the Circuit Court of the United States for the District of Massachusetts.

Mr. George T. Curtis, on behalf of the defendant in error, moved to dismiss the writ of error for the want of jurisdiction.

The circumstances were these:

At the October term, in the year 1848, of the Circuit Court of the United States for Massachusetts District, Many, the defendant in error, recovered a judgment against the plaintiffs in error, in an action for the infringement of letters-patent, which was entered and recorded in the words following:

'It is thereupon considered by the court that the said William V. Many recover against the said George W. and Henry Sizer the sum of seventeen hundred and thirty-three dollars and seventy-five cents damages, and costs of suit taxed at _____.'

The said Sizers thereupon, at the same term of the Circuit Court, sued out a writ of error to this court, for the purpose of having the said judgment revised. This writ of error was duly entered and prosecuted in this court, and at the December term, 1851, the judgment of the Circuit Court was affirmed by a divided court, and therefore it is not reported in Howard.

The mandate which went down, recited the judgment of the Circuit Court as above given, and then proceeded thus:

'You therefore are hereby commanded that such execution and proceedings be had in said cause as, according to right

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and justice and the laws of the United States, ought to be had, the said writ of error notwithstanding.'

On the receipt of this mandate, the attorney for the defendant in error (the original plaintiff below) presented the same to the Circuit Court, held by the district judge, and applied for leave to have the costs in the action taxed and inserted in the blank left in the original record of the judgment. This motion was refused by the district judge.

The defendant in error thereupon, at the December term of this court, in the year 1852, applied to this court for a mandamus to direct the court below to tax and allow his costs in the original action, amounting to $1,811.59. The court refused the application, for reasons which appear in the case. Ex parte Many, 14 Howard, 24.

In May, 1853, Mr. Curtis, counsel for Many, renewed his motion to the district judge, setting out in writing the mandate of this court in the original cause, and the amount of the costs, and praying the court to make an order allowing of their taxation and insertion in the original judgment; and praying for execution as directed by the mandate of this court.

Opposition was made to this motion by Sizer et al., but the motion was granted, as appears by the following extract from the record. It is proper to remark that the court was held by the district judge alone, Mr. Justice Curtis having been of counsel and not sitting. The costs in the Circuit Court amounted to $1,811.59.

And the said Sizer et al., by their counsel, objected to the granting of the said motion for an allocatur as to the said costs, or to their being inserted in the judgment, and claimed and requested that if the court should allow the said costs, and direct the clerk to insert the amount in the record of said judgment, then the defendants should have a right to sue out a writ of error, and for that purpose, that the court here should either certify that it is reasonable that there should be such writ of error, or should add interest upon the amount of said costs from the time of the rendition of the original judgment to the present time, so as to make the amount more than two thousand dollars, and that no execution should issue if, within ten days, a writ of error should be sued out, and security given according to law; to which claims and requests, made by the defendants, the plaintiffs objected, and insisted upon the said motion.

And now the court having considered the said motion filed by the plaintiff, and the objections, claims, and requests made by the defendants, and deeming it to be the legal right of the plaintiff to have the said costs allowed, and the amount thereof inserted in the original judgment in this cause, and that it is

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not within the discretion of the court to allow or disallow the same, it is ordered by the court that the said costs, as taxed in said motion, be allowed, and that the amount thereof be inserted in the original judgment in this cause.

And the court here doth deem it reasonable that the said defendants should be allowed to bring a writ of error to the Supreme Court; and it is further ordered by the court, that execution, as prayed for in said motion of the plaintiff, shall issue after the expiration of ten days, Sundays exclusive, from the making of the order, unless the said defendant shall, within said ten days, give security according to law, and serve a writ of error, by leaving a copy thereof for the plaintiff in the office of the clerk of this court; and if such security should be given, and such service made within ten days, then that execution should not issue until the further order of the court.

By the court,

H. W. FULLER, Clerk.

The writ of error was sued out and brought all these proceedings up to this court.

The motion to dismiss was argued by Mr. Curtis, in favor of it, and by Mr. Robb, against it.

Mr. Curtis. The writ of error now before the court, although it brings up the proceedings in the Circuit Court prior to the mandate in the original cause, in contemplation of law can present for revision here solely the question, whether the Circuit Court erred in making the order by which the...

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