[3]
1935.C08.40187
[4]
March 12, 1935
[5]
WALSH CONST. CO.
v.
UNITED STATES GUARANTEE CO.
This rule simply requires a mandate in the nature of a procedendo, the effect of which, as
was the effect of the writ of procedendo, is to hand back to the nisi prius court a
jurisdiction over the case which it had lost for the time, perforce the appeal. The writ
procedendo is merely a writ from an appellate court commanding the court from which
the case was appealed to proceed to judgment, so far as the thing is now pertinent here.
Under the rule, supra, the "mandate, or other proper process, in the nature of a
procedendo," takes the place of the writ proper. Its terms of necessity are as various as
the different situations require. Obviously, it cannot and does not always require a new
trial, since it applies to equity cases as well as cases at law. For a case may be reversed
outright; or reversed and remanded; or reversed to be tried anew in accord with the
opinion of the court, or not inconsistent therewith; or reversed and remanded with
instructions; or reversed with instructions to retry a single issue only, or in other ways not
necessary to write down. So the rule merely requires that the case be sent down, or
handed back to the trial court, so that court may have jurisdiction (which it lost on
appeal) to record and carry out the judgment of the appellate court. It is undoubtedly the
fact, as already forecast, that, when an appellate court reverses a case, without more, the
general understanding among bench and bar is that the case is at an end. If the situation
anywhere requires further action in the name of justice, steps must be taken promptly to
modify the opinion and judgment before the lapse of the current term; otherwise the
mandate in the nature of a procedendo becomes a final and unalterable command to the
nisi prius court. Donnell v. Wright, supra.
SUPREME COURT OF THE UNITED STATES
[2]
No. 19
[3]
1918.SCT.334
[4]
June 3, 1918
[5]
HARTRANFT
v.
MULLOWNY, JUDGE OF THE POLICE COURT OF THE DISTRICT OF
COLUMBIA
At common law, when a cause before judgment was removed by certiorari in order that
Justice might be done by quashing the indictment or information or proceeding to trial, or
otherwise, as the circumstances might require, the nature of the cause was not changed
by the removal and a judgment quashing the writ was followed by a procedendo as a
matter of course.
SUPREME COURT OF THE UNITED STATES
[2]
No. 111
[3]
1919.SCT.113
[4]
March 3, 1919
[5]
CHICAGO GREAT WESTERN RAILROAD COMPANY
v.
BASHAM, ADMINISTRATOR OF SPELLMAN
The action was brought against the railway company in a district court to recover
damages for the death of plaintiff's intestate, and a trial by jury resulted in a verdict and
judgment for the plaintiff. Defendant appealed to the Supreme Court of Iowa, and that
court on November 26, 1915, delivered an opinion for affirmance (178 Iowa, 998), and
judgment was entered accordingly. A petition for a rehearing was filed, which, after
consideration, was overruled April 7, 1916 (157 N.W. Rep. 192; 178 Iowa, 998), and
a writ of procedendo was awarded. Thereafter a second petition for rehearing was filed,
and, having been fully considered, was overruled on December 18, 1916, and judgment
to that effect duly entered. The petition for allowance of a writ of error from this court,
presented on the following day to the chief Justice of the Supreme Court of Iowa,
averred that the final order and judgment affirming the judgment of the district court was
entered by the supreme court on the eighteenth day of December, 1916; and for review
of this judgment a writ of error was prayed for and allowed.
[22]
We think this was a correct statement of the effective date of the judgment sought to be
reviewed.
[23]
Section 237, Judicial Code, both before and since the amendment of September 6,
1916, permits of the review by this court only of the final judgment or decree of the
highest state court in which a decision in the suit could be had. It is only a judgment
marking the Conclusion of the course of litigation in the courts of the State that is
subjected to our review. Hence, whatever its form of finality, if a judgment be in fact
subject to reconsideration and review by the state court of last resort through the medium
of a petition for rehearing, and such a petition is presented to and entertained and
considered by that court, we must take it that by the practice prevailing in the State the
litigation is not brought to a Conclusion until this petition is disposed of, and until then the
judgment previously rendered can not be regarded as a final judgment within the meaning
of the act of Congress. We said recently in an analogous case: "If it were not so, a
judgment of a state court susceptible of being reviewed by this court would,
notwithstanding that duty, be open at the same time to the power of a state court to
review and reverse." Andrews v. Virginian Ry. Co., 248 U.S. 272. It results that in the
present case the judgment of the Supreme Court of Iowa did not become a "final
judgment" until December 18, 1916, and by reason of the nature of the only federal
questions raised in the record it then was reviewable in this court only by writ of
certiorari, because of the above-cited provisions of the Act of 1916.
SUPREME COURT OF MISSOURI EN BANC
[2]
No. 58853
[3]
1975.MO.811
[4]
November 25, 1975
[5]
STATE EX REL. FRANKLIN DALE GARRETT, PETITIONER
v.
JAMES GAGNE, DIRECTOR OF MUNICIPAL CORRECTIONAL
INSTITUTION, RESPONDENT
The appeal does not wipe out or annul the judgment of the inferior court so as to render
it nonexistent if the appeal is not perfected or is revoked. So, where appellant withdraws
his appeal, or the appellate court dismisses it, and sends it back to the Justice's court with
a writ of procedendo, there is no affirmance or new sentence; the judgment of the
Justice's court is left in full force and effect, and under such circumstances, the judgment
of the Justice's court should be executed, and commitment in pursuance thereof is valid,
even though the dismissal was erroneous.