Foster v. Jordan

Chalmers, J., delivered the opinion of the court. This case having been heretofore in this court and reversed, the mandate certifying that fact to the lower court was issued Feb. 6, 1877, but seems not to have been filed in the lower court until after the second trial, from which the present writ of error is prosecuted. It is therefore insisted that the Circuit Court of Clay County was without jurisdiction at the time of the second trial, because it had no mandate from this court [510] permitting it to proceed with the case, which, so far as that court knew, was still undetermined in this. This is an erroneous conception of .the province of the mandate. .It is the judgment of this court reversing and remanding a case which gives the lower court authority to enter upon a new trial. The mandate is the official mode of communicating that judgment to the inferior tribunal. The production of the mandate is the best evidence of the fact of reversal, and if objection was made in the lower court, a second trial could not be gone into until the mandate was filed. But in this case the second trial took place without objection, and it is in this court that .the objection is made for the first time that the Circuit Court had no jurisdiction. This is too late. Our own records show a reversal and issuance of a mandate two months before the second trial in the lower court; and the parties, bjr going into that trial without objection, must be held to have waived the filing of the mandate. Judgment affirmed.