Germania Fire Insurance v. Francis , 7 N.Y. St. Rep. 310 ( 1887 )

Brady, J

(dissenting):

This action is based upon an alleged judgment of the Supreme Court of the United States. It has had a somewhat checkered career and is again here for consideration. The complaint has been dismissed for the plaintiff’s supposed failure to prove any cause of action. The defendant’s counsel asked for judgment for his clients for that reason and the request was granted, although the exceptions were ordered to be heard here in the first instance. The demand made by the plaintiff rests upon a mandate issued from the Supreme Court of the United States in the case of the defendant against the plaintiff, and is as follows:

UNITED STATES OP AMERICA, ss.:

The President oe the United States of America.

To the Honorable the Judge of the District Court of the United [l. s.] States for the Northern District of Mississippi ' Greeting :

Whereas, lately in the District Court of the United States for the Northern District of Mississippi, before you, in a cause between John R. Francis, plaintiff, and the Germania Fire Insurance Company, defendant, wherein-the verdict of the jury and the judgment, of the said District Court entered in said cause on the 21st day of June, A. D. 1869, is in the following words, viz.: “ Came the parties by their attorneys, and thereupon came a jury of good and lawful men, to wit, jury No. 1, who, being duly elected, sworn to and charged well and truly to try the issue joined between the parties, oaths, do say they find the issue in favor of the plaintiff, and assess his damages at the sum of twenty-nine hundred and thirty dollars and fifty-eight cents ($2,930.58) damages. It is, therefore, considered by the court that the said plaintiff do recover of the said defendant the said sum by the jury aforesaid assessed, together with his costs herein expended, as by the inspection of the transcripts of the record of the said District Court, which was brought into Supreme Court of the United States by virtue of a writ of error, agreeably to the act of Congress, in such case made and provided, fully and at large appears.

And whereas, in the present term of December, in the year of Our Lord one thousand eight hundred and seventy, the said cause came on to be heard before the said Supreme Court on the said transcript of record, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said District Court in this cause be and the same is hereby reversed, with costs, and that the said defendant recover against the said plaintiff, John R. Francis, two hundred and forty-one dollars and ten cents, for its costs herein expended, and have execution therefor.

And it is further ordered that this cause be and the same is hereby remanded to the said District Court, with directions to transmit it to the Circuit Court of Monroe county, for further proceedings in conformity to law and justice.

6th March, 1871.

You, therefore, are hereby commanded that such execution and further proceedings be had in said cause, in conformity to the opinion and judgment of this court, as according to right and justice and the laws of the United States ought to be had, the said writ of error notwithstanding. -

Witness, the Honorable Salmon P. Chase, Chief Justice of said Supreme Court, the first Monday of December, in the year of our Lord one thousand eight hundred and seventy.

Costs of defendants:

Clerk........... $221 10

Attorney........ 20 00

$241 10

Taxed by D W. Middleton, Clerk of the Supreme Court of the United States.

(True Copy.)

Test. JAMES H. McKENNEY,

Cleric Supreme Court, U. 8.

I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the mandate issued in the case of the Germania Fire Insurance Company v Francis, No. 82, December Term, 1870,

In testimony whereof, I hereunto subscribe my name and affix the seal of said Supreme Court at the city of Washington, the 7th day of May, A. D. 1871.

JAMES H. McKENNEY,

Clerk Sxvpreme Court, U. 8.

The admission of this paper was objected to, but the objection was overruled. It was claimed that it was not duly authenticated, but this was not'maintainable. It conforms to the provisions of the Code on the subject. (Sec. 943.) It was also contended, and, it seems, successfully, that it lacked all the essential elements of a judgment, and was but a mandate only. This is an erroneous view of its character. It is in some respects like our remittitur from the Court of Appeals, which directs this court to execute the judgment pronounced (Code Civil Pro., § 194), but goes farther for the reason that it awards the costs and declares the amount thereof.

It further appears upon examination that the United States Court, upon -consideration of the plaintiff’s appeal, ordered and adjudged that the judgment appealed from be reversed with costs, and that the plaintiff (then defendant) recover against the plaintiff (now defendant) the sum of $241.10 for his costs and have execution therefor, and sent this mandate announcing this judgment. It was sent to the court from the judgment of which the appeal was taken, with directions for that court to transmit the cause to the court of original jurisdiction for further proceedings, and commanded that execution and the further proceedings be had, in the cause in conformity to the opinion and judgment as according to right and justice and the laws of the United States ought to be had, that is to say, that the merits be considered and a judgment pronounced, but not whether the costs should be awarded. They were given absolutely. The laws of the United States in each State provide that a judgment for money may be enforced by action, if duly authenticated and such is the law of this State. The validity of this mandate, though now again questioned, was not doubted on the former argument herein. It was distinctly held to be evidence of a proceeding which created a cause of action for the costs awarded, but the judgment was supposed to have been superseded by other proceedings in the litigations had before Judge Treat. This court said on the motion for a reargument that the appeal was disposed of on the assumption that the judgment was valid and regular. The record now does not present any question which may be predicated of the want of jurisdiction in the United States Court to hear the appeal taken by the plaintiff, and, therefore, the cases affecting such an element do not apply. Here the jurisdiction existed and the power to impose costs in such cases is not to be doubted. The consideration of the exceptions herein, therefore, leads to this conclusion, namely, that if the contention of the defendant be correct, then the plaintiff is limited to his remedy by execution under the mandate and must make his judgment out of property in the State of Mississippi. This cannot be the law. A judgment rendered in a court of competent jurisdiction proceeding according to the course of the common law, and having jurisdiction of the person and subject-matter, may be enforced here if duly authenticated. There is no limit to such a judgment, therefore, as claimed.

The mandate was a judgment for costs, and was absolute, and no reference to any practice has been made showing the necessity of any other proceeding upon it to make it effectual as such. Indeed it cannot be necessary, for the mandate is the guide to the Circuit Court. It is the judgment of the Supreme Court committed to that court. (Sibbald v. The U. S., 12 Peters, 488; United States v. Fossat, 21 How., 445.) The Revised Statutes of the United States (§ 701), cited by the respondent, do not so declare. That section provides that the Supreme Court shall not issue execution' in a cause removed before it from a District Court, but shall send a special mandate to the inferior court to award execution thereon, an order of proceeding rendered necessary only because the execution cannot be issued out of the Supreme Court.

The mandate is not to enter a judgment for costs, and obviously for the reason that one has been already pronounced and exists upon which enforcement by execution is commanded.

This is the extent of the restriction, namely, you shall not issue execution out of the Supreme Court of the United States. It is not deemed necessary, however, to pursue this subject further. It has been judically declared that the plaintiff recover certain costs, and this is a judgment for money to be collected by the general rules governing such claims.

The judgment below is wrong, the exceptions of the plaintiff having been well taken, and there must be a new trial. Ordered accordingly, with costs to the appellant, to abide the event.

Judgment ordered for defendant, with costs.