Ex Parte in the Matter of Franklin Ransom and Uzziah Weeman v. The Mayor, Aldermen, and Commonalty, of the City of New York

Mr. Justice NELSON delivered the opinion of the court. A motion is made on behalf of the plaintiffs for a mandamus to the Circuit Court of the United States for the southern district of New York, to compel that court to yacate an order in the above cause, directing a judgment entered against the defendants on the 12th of December, 1857, of $21,458.21,- to be vacated. The judgment was entered upon a verdict rendered for the plaintiffs in an action for the alleged infringement of a patent for an “improvement in the mode of applying water to fire engines, so as to render their operation more effective.” The judgment was entered in consequence of the stay of proceedings having expired, given to the defendants to make a case on.'which to move for a new-trial. Afterwards, on the 19th December, during the same term, an order was entered on motion of the defendants, after hearing counsel on both *583 sides, by Judge Ingersoll, then holding the court, vacating the judgment on the payment of costs that had previously accrued, aud also upon the condition that the ease should be settled in a short time mentioned, and the motion made for a new trial, with liberty to either party to turn the case into a bill of exceptions, which right had been reserved at the trial. The case was settled accordingly, the motion for a new trial heard and denied, a bill of exceptions settled and signed, agreeably to the order of the 19th December, and filed in the office of the clerk of said court. Since the motion for a new trial, and the settlement of the bill of exceptions, the attorney for the plaintiff’ has issued an execution on the judgment of the 12th December, claiming it to be still in force, on the ground that the condition had not been complied with in respect to the payment of costs. A motion was subsequently made by the defendants to set aside this execution and the judgment aforesaid unconditionally, which was granted by the court. The present motion to this court is for a rule to show cause against the court below, why a mandamus should not issue to vacate this last order. The'ground upon which the court below placed its decision for setting aside the judgment and execution unconditionally, is, that the attorney for the plaintiffs, by not making out his * bill of costs, procuring a taxation, and demanding them previous to the hearing of the motion for a new trial, thereby impliedly consented to waive this condition, and cannot after-wards set it up for the purpose of invalidating the order of the 19th December, vacating the judgment. We concur in this view of the court, and we are also satisfied, from the course of the proceedings preparatory to the motion for the new trial, the hearing of that motion, and the turning of-the case into a hill of exceptions with a view to a writ of error, it was the understanding of both parties that the judgment of the 12th December was to he considered as vacated, and that a new one he entered for the plaintiffs, if a motion for a new trial was desired. The court is of opinion, therefore, that the facts presented upon this motion for a mandamus are not such as entitle the plaintiffs to a rule to their cause, and it must therefore he denied.