Memphis v. Brown , 24 L. Ed. 244 ( 1877 )

94 U.S. 715 (1876)

MEMPHIS
v.
BROWN.

Supreme Court of United States.

Mr. P. Phillips and Mr. W.M. Randolph in support of the motions.

Mr. W.Y.C. Humes, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

We think that the order made by the Circuit Court, May 20, 1876, upon the motion to subject merchants' capital to the tax was such a final judgment as may be brought here for re-examination by a writ of error. The precise question decided by that order had never before been presented in the cause. The city was then for the first time required, in express terms, to subject this particular class of property to the adjudged taxation. The writ was, therefore, properly sued out upon the judgment.

Under the ruling in Brockett v. Brockett, 2 How. 241, the motion made during the term to set aside the judgment of March 2 suspended the operation of that judgment, so that it did not take final effect for the purposes of a writ of error until May 20, when the motion was disposed of. In addition to this, the form of the entry of May 20 is equivalent to setting aside the judgment of March 2, and entering it anew as of that date. This the court had the right to do during the term, and for the very purpose of giving it effect for a supersedeas. Sage et al. v. Central Railroad Company of Iowa et al., 93 U.S. 412. As the writ was issued on the day of the order, and its allowance embraced in the entry recording the order itself, there cannot be any doubt of the intention of the court to give the judgment at that time such an effect.

Motions denied.