National S.S. Co. v. Tugman
| Decision Date | 21 July 1897 |
| Citation | 82 F. 246 |
| Parties | NATIONAL S.S. CO., Limited, v. TUGMAN. |
| Court | U.S. Court of Appeals — Second Circuit |
John Chetwood (J. Parker Kirlin, of counsel, for appellant.
Willard U. Taylor, for appellee.
Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
The proposition need not be controverted that upon the appeal of the complainant, the defendant in the suit in the state court, the appellate courts had jurisdiction to review the judgment appealed from, and, if a reversal had been adjudged would have been authorized to order a judgment for the costs of the suit in his favor. But there was no judgment of reversal, or for costs, by either of the appellate courts. Consequently, upon the reversal by the supreme court of the judgment in the state court (because the suit had been properly removed to the United States circuit court, and thereafter the state court was without power to proceed further), the only authority of the state court was such as was conferred by the mandate of the supreme court. That mandate directed the state court to 'accept the bond tendered' by the complainant, and 'proceed no further in the cause.' 1 Sup.Ct. 58. Thereafter all that the state court could properly do in the cause was to make the mandate its judgment. No action upon its part could add to any more than it could detract from, the force of the mandate. The mandate did not direct the state court to render any judgment for costs in favor of the complainant. The general clause remanding the cause to the state court 'in order that such execution and further proceedings may be had in the cause, in conformity to the judgment and the decree of this court above stated, as according to right and justice and the constitution and laws of the United States, ought to be had therein,' was not intended to override or modify the specific injunction to 'proceed no further in the cause,' but was inserted merely to authorize the state court to carry the mandate into execution by appropriate entries in the records of the court. It follows that the judgment thereafter rendered by the state court, awarding the complainant the costs of the action therein, including the appeals, was a nullity.
After the reversal by the supreme court, when the cause proceeded in the United States circuit court to which it had originally been properly removed, and a recovery was adjudged against the complainant upon the merits, it was open...
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Blair v. Durham, 9281.
...is as much a part of the judgment as if expressed in it. Amis v. Smith, 41 U.S. 301, 311, 16 Pet. 303, 10 L. Ed. 973; National S. S. Co. v. Tugman, 2 Cir., 82 F. 246. The principle is well established that on a mandate from an appellate court containing a directive to the lower court to ent......
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American Surety Co. v. Campbell
...Company, 38 Ga.App. 430, 144 S.E. 149; Georgia Code, Sections 57-108. 3 Amis v. Smith, 16 Pet. 303, 10 L.Ed. 973; National Steamship Company v. Tugman, 2 Cir., 82 F. 246. ...