Aspen Mining Smelting Company v. Billings/Opinion of the Court
By the thirty-second rule, as amended, (146 U.S. 707, 13 Sup. Ct. Rep. iii.,) cases brought to this court by writ of error or appeal under section 5 of the act of March 3, 1891, when the only question at issue is the question of the jurisdiction of the court below, will be advanced on motion, and taken on printed briefs or arguments in accordance with the prescription of rule 6 in regard to motions to dismiss writs of error or appeals; but, as this appeal will be disposed of on the motion to dismiss, an order to advance is unnecessary, and would, indeed, be superfluous, under the circumstances, in view of the motion to affirm.

Nor do we find sufficient reason for the allowance of oral argument in the character of the questions involved, nor in the solicitude of appellants' counsel to repel in that form suggestions in the briefs of counsel for appellees questioning the propriety of the application for the allowance of the appeal, as we perceive no ground calling for defense from imputation in that regard. It is sufficient to dismiss the remarks referred to with the observation that they are lacking in the courtesy and temperance of language due from the members of the bar, and as such obnoxious to animadversion. The condition of the record justified the application, and the allowance of the appeal, although, upon consideration, we are of opinion that it cannot be sustained.

The contention is that the appeal to the circuit court of appeals was unauthorized and void, because the allowance of the appeal to this court, May 6, 1891, vested in it exclusive jurisdiction of the cause, which could not be divested by a vacation of that allowance by the circuit court, and also because the original final decree was entered October 20, 1890,-one of the days of the May term, 1890, of the circuit court,-while the appeal to the circuit court of appeals was prayed, allowed, and perfected on July 2, 1891, and at the May term, 1891, of the circuit court, contrary, as insisted, to the rules and the statute.

1. The appeal to this court was allowed on condition that bond should be given as designated, but this was not done, nor any other step in effectuation of the appeal taken, and the order of allowance was vacated on a subsequent day of the same term.

The general power of the circuit court over its own judgments, decrees, and orders during the existence of the term at which they are made is undeniable, and an order allowing an appeal is subject to that power so long as the appeal remains unperfected, and the cause has not passed into the jurisdiction of the appellate tribunal. Ex parte Roberts, 15 Wall. 384; Goddard v. Ordway, 101 U.S. 745; Draper v. Davis, 102 U.S. 370; Keyser v. Farr, 105 U.S. 265.

There is nothing to the contrary in Evans v. Bank, 134 U.S. 330, 10 Sup. Ct. Rep. 493, in which it was held that our jurisdiction may be maintained when the record on appeal has been filed here during the term to which the appeal was returnable, even though bond had not been approved and citation signed. No such state of case is presented, nor was the question of the power of the court below to set aside its order of allowance involved in that case or in others in which like rulings have been made.

Equally unavailing is the reference to the provision of the joint resolution of March 3, 1891, 'to provide for the organization of the circuit courts of appeals,' (26 Stat. 1115,) that nothing in the act of March 3, 1891, (26 Stat. 826, c. 517,) should be held or construed to impair the jurisdiction of the supreme court in any case then pending before it, or in respect of any case wherein the appeal had been taken to that court before the 1st day of July, 1891, for this merely preserved the jurisdiction as stated, and did not operate to give jurisdiction as to appeals not perfected, which would not otherwise have existed.

In our judgment the circuit court had power to vacate the allowance of the 5th of May during the term, and allow the appeal of July 2d, and this even if after March 3, and prior to July 1, 1891, an appeal might have been taken either to this court or the circuit court of appeals,-a point suggested, but upon which it is unnecessary to pass.

2. The decrce dismissing complainants' bill was entered on October 20, 1890, but an application for a rehearing was made shortly, thereafter, and during the same term, but not disposed of until May 5, 1891.

The rule is that if a motion or a petition for rehearing is made or presented in season, and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal. Brockett v. Brockett, 2 How. 238, 240; Railroad Co. v. Murphy, 111 U.S. 488, 4 Sup. Ct. Rep. 497; Memphis v. Brown, 94 U.S. 715.

If this case falls within that category, then the six months within which the appeal had to be taken under section 11 of the judiciary act of March 3, 1891, did not commence to run until May 5, 1891, and the appeal was in time.

It is true that equity rule 88 provides that 'no rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the supreme court;' but if this petition for rehearing was filed in season, and entertained by the court, then the decree, although entered in form, did not discharge the parties from their attendance in the cause, and they were bound to follow the petition thus pending to the next term. The suit was thereby prolonged until the application was disposed of in the regular course of proceeding. This is expressly so ruled in Goddard v. Ordway, supra.

In Giant Powder Co. v. California Powder Co., 5 Fed. Rep. 197, 6 Sawy. 508, it was said by Mr. Justice Field that equity rule 88 applies only where no petition is presented during the term, and the numerous cases in which it has been held that the time limited for an appeal does not begin to run until a petition for a rehearing, properly presented, has been disposed of, sustain that view. The decree does not, in legal effect, remain final while the petition is pending, and the prescription of rule 88 must be construed to mean that a rehearing cannot be granted after the lapse of the term unless application is made therefor during the term, and, being entertained, the decree is thereby prevented from passing beyond the control of the court. The entertaining of the petition keeps the jurisdiction alive, and the granting of the rehearing may be made absolute or denied thereafter, as the court may determine.

But it is said this cannot be the result, under either statute or rule, of the mere filing of a motion or petition for rehearing, and that it does not affirmatively appear in this case that the motion or petition was entertained by the court. But we should be inclined to hold, if a decision in that regard were called for, that, since the application was passed upon as having been duly made, the presumption must be indulged that it was entertained by the court in the first instance, and during the term at which the decree was pronounced.

3. Apart from these considerations, however, this is an appeal from a decree entered by the circuit court in conformity with the mandate from the circuit court of appeals for the eighth circuit. That court took jurisdiction, passed upon the case, and determined by its judgment that the appeal had been properly taken. If error was committed in so doing, it was not for the circuit court to pass upon that question. The circuit court could not do otherwise than carry out the mandate from the court of appeals, and could not refuse to do so on the ground of want of jurisdiction in itself or in the appellate court. Skillern's Ex'rs v. May's Ex'rs, 6 Cranch, 267; In re Washington & G. R. Co., 140 U.S. 91, 11 Sup. Ct. Rep. 673; Gaines v. Rugg, 148 U.S. 228, 241, 13 Sup. Ct. Rep. 611. And no rule is better settled than that an appeal from a decree entered by the court below in accordance with the mandate of the appellate court cannot be maintained. Stewart v. Salmon, 97 U.S. 361; Humphrey v. Baker, 103 U.S. 736; Railway Co. v. Anderson, 149 U.S. 237, 13 Sup. Ct. Rep. 843. If the circuit court of appeals erred, or if, for any reason, its judgment could be held void, the appropriate remedy lay in a certiorari from this court to that court. American Const. Co. v. Pennsylvania Co., 148 U.S. 372, 13 Sup. Ct. Rep. 758. And, we judicially know, from our own records, (Butler v. Eaton, 141 U.S. 240, 243, 11 Sup. Ct. Rep. 985,) that the present appellants applied to this court for that writ, and that the application was denied. Appeal dismissed. 

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