Crane v. Weymouth

Department No. 1, McKinstry, J.: Defendants were sureties upon an undertaking on appeal in an action of ejectment, wherein one Huff was plaintiff and C. W. Doyle defendant, and the present action was brought by plaintiffs upon the undertaking to recover the costs and damages, and for the value of the use and occupation by the defendant in ejectment pending the appeal. This Court reversed the judgment in ejectment of the District Court, and directed that Court to render judgment in favor of Doyle for his costs, etc. In obedience to the remittitur of the Supreme Court, the District Court entered judgment in favor of Doyle for his costs. Subsequently Huff “ caused a writ of error to be issued out of the Supreme Court of the United States, whereby said cause was removed from the Supreme Court of the State of California to said Federal Court for review, and such proceedings were had and taken in said cause in the Supreme Court of the United States, that on the 15th day of January, 1877, said last-named Court made and caused its judgment to be entered therein, whereby the judgment and order of the Supreme Court of California, made in said cause on the 6th day of April, 1875, aforesaid, was reversed, and said cause was [479] remanded to the said last-named Court, with directions to affirm the judgment of the District Court of the 21st of January, 1874, aforesaid.” (Finding 4.) The mandate of the Supreme Court of the United States ran to the Supreme Court of the State, and in accordance therewith the latter “ caused to be entered its order and judgment, whereby it was ordered and adjudged that the order and judgment of said Court, made on the Gth day of April, 1875, be vacated and set aside, and that the District Court do vacate and set aside its judgment of the 4th of August, 1875, in favor of said Doyle for costs; and it was further ordered and adjudged that the judgment of the District Court made and entered in said action on the 21st of January, 1874, be in all things affirmed.” (Finding 5.) This proceeding accorded with the law of the United States. “A final judgment or decree in any suit in the highest Court of a State, in which a decision in that suit could be had * * * may be re-examined and reversed or affirmed in the Supreme Court upon writ of error. ® * * The Supreme Court may reverse, modify, or affirm the judgment or decree of such State Court, and may at their discretion award execution, or remand the same to the Court from which it was removed by the writ.” (Desty’s Fed. Proc. p. 102, § 709.) It is said by counsel for appellant that the “ judgment of the Supreme Court of the United States acts upon the case and parties, and not upon the State Court—that the process should issue directly from the United States Supreme Court to the Marshal, and not from the State Court. ” As we have seen, however, the Court may “ at their discretion, award execution, or remandf etc.- The judgment .of the Supreme Court of the United States reversed the judgment of the Supreme Court of the State, and remanded the canse, “ with directions to affirm the judgment of the District Court.” To give effect to the suggestion of appellant, we should be obliged to hold either that the judgment of the Supreme Court directing a judgment by this Court, or the order of this Court setting aside its former judgment and entering a judgment in accordance with the mandate [480] of the United States Supreme Court, was void. We are quite certain that neither is subject to collateral attack. The contract of defendants was, that if the judgment of the District Court should be affirmed by the Supreme Court of the State, they would pay, etc. The judgment was affirmed, and their liability accrued. The legislation of the State is to be construed in view of the possibility that a judgment of this Court, reversing a judgment of the District Court, might in turn be ieversed, and that no final judgment of this Court could in such case be entered until the cause had been disposed of in the Supreme Court of the United States. Assuming that the last judgment of this Court is not absolutely void, it is a judgment, and the only one affirming the judgment of the District Court. The present is not an action of trespass for mesne profits, but on action brought against the original obligors upon a contract, an which, by its terms, the liability of defendants has accrued. The point that the action was prematurely brought because commenced before the plaintiffs in ejectment had regained possession—and therefore before they could have maintained a suit for mesne profits—was therefore not well taken. Judgment affirmed. Boss, J., and McKee, J., concurred.